Citation Nr: 1004535 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 05-09 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a compensable evaluation for service- connected hypoglycemia for the portion of the claim/appeal period prior to July 5, 2007. 2. Entitlement to an evaluation higher than 10 percent for service-connected diabetes mellitus with history of hypoglycemia for the portion of the claim/appeal period from July 5, 2007. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD). 4. Entitlement to service connection for residuals of lumbar spine injury. REPRESENTATION Veteran represented by: Patrick H. Donahue, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from January 1977 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In January 2007, the Veteran and his wife presented hearing testimony before the undersigned Veterans Law Judge at the RO. The transcript is in the claims file. The Board previously denied the Veteran's claims of service connection for GERD and residuals of lumbar spine injury in August 2007 and the Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In October 2008, the Veteran, through his attorney, and the Secretary of Veterans Affairs (the parties) submitted a Joint Motion for Remand (Joint Motion), which asked the Court to vacate the portion of the August 2007 Board decision that denied the claims and remand the claims to the Board for further proceedings in accordance with the Joint Motion. In a November 2008 Order, the Court granted the motion. The case now returns to the Board following the Court Order. In the August 2007 decision, the Board also remanded the issue of entitlement to a compensable evaluation for hypoglycemia for further evidentiary development. Based on such development, the Veteran was awarded an increased disability rating of 10 percent effective from July 5, 2007, by the RO for diabetes mellitus with history of hypoglycemia, in a May 2009 rating decision. However, because this increase did not constitute a full grants of the benefits sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Consequently, the issues involving an increased rating for hypoglycemia will now be considered, as is reflected on the first page of this decision. The issues of service connection for GERD and service connection for residuals of lumbar spine injury are herein REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran when further action is required. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, the evidence shows that his hypoglycemia is managed by diet only during the portion of the claim/appeal period prior to July 5, 2007. 2. For the portion of the claim/appeal period from July 5, 2007, the evidence shows that the Veteran's diabetes mellitus with hypoglycemia is managed by diet only. 3. The Veteran has not taken oral hypoglycemic agents or insulin to manage his diabetes mellitus or hypoglycemia. CONCLUSIONS OF LAW 1. Giving the benefit of the doubt to the Veteran, the criteria for a disability rating of 10 percent for hypoglycemia were met for the portion of the claim/appeal period prior to July 5, 2007. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7999-7913 (2009). 2. The criteria for a disability rating higher than 10 percent have not been not met or approximated for the Veteran's diabetes mellitus with hypoglycemia for the portion of the claim/appeal period from July 5, 2007. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, DC 7913 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). 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); 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2009). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Veterans Appeals (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. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error. The Supreme Court in essence held that - except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). During the course of this appeal, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court held that, pursuant to 38 U.S.C. § 5103(a), a VCAA notice for an increased rating claim must include the following information: (1) the VA must notify the veteran that in order to substantiate a claim, he or she must provide (or ask the VA to obtain) medical or lay evidence demonstrating that his or her disability has worsened or increased in severity and the effect the worsening has had on his or her employment and daily life; (2) if the veteran's current diagnostic code "contains criteria necessary for entitlement to a higher disability rating that would not be satisfied" by providing the evidence described above-the example provided was where a "specific measurement or test result" would be required- then the VA must give "at least general notice" of that requirement; (3) the VA must tell the veteran that if he or she is assigned a higher rating, that rating will be determined by applying relevant diagnostic codes, which generally provide for disability ratings between 0-100%, "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life"; and (4) the notice must also provide examples of the types of medical and lay evidence - such as job application rejections - that the veteran may submit (or ask the VA to obtain) "that are relevant to establishing [her or] his entitlement to increased compensation." However, recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision on appeal that vacated and remanded the decision of the Veterans Claims Court in Vazquez-Flores. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009). The reasoning of the Federal Circuit's Vazquez-Flores decision precludes the interpretation of section 5103(a) as requiring notice tailored to the specific claim of a particular veteran, such as notice of diagnostic code criteria that would not be satisfied by evidence that a disability has worsened or increased in severity and the effect of the worsening on the veteran's employment, such as where a specific measurement or test result would be required. Consequently, the second element contained in the Court's decision (if the veteran's current diagnostic code "contains criteria necessary for entitlement to a higher disability rating that would not be satisfied" by providing the evidence described above-the example provided was where a "specific measurement or test result" would be required-then the VA must give "at least general notice" of that requirement) is no longer legally required. Such notice also does not need to inform the veteran of the need to submit evidence concerning the affect a service-connected disability has on his or her "daily life" because only the average loss of earning capacity, and not impact on daily life, is subject to compensation under 38 U.S.C. § 1155. Generic notice in response to a particular type of claim - a claim for an increased rating - is all that is required. In regard to the Veteran's claimed hypoglycemia, the Board notes that the Veteran was informed in the December 2003 VCAA notice letter that the evidence needed to show that his service-connected disability had gotten worse in order to establish entitlement to an increased evaluation for his service-connected disability. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim in said notice letter. In addition, the RO later explained how VA assigns the disability rating and effective date in March 2006 and December 2008 correspondence and included a thorough description of the types of evidence that the Veteran should submit in support of his increased rating claim. His claim was subsequently readjudicated. Thus, the December 2003 VCAA notice letter together with the March 2006 and December 2008 follow-up notice letters satisfied notice requirements with respect to the Veteran's increased rating claim. Any timing defect has been cured by issuance of proper notice followed by readjudication of the claim. Mayfield, supra. Moreover, the record reflects that the Veteran has been provided with a copy of the above rating decision, the January 2005 Statement of the Case (SOC), and the December 2006, February 2009, and May 2009 Supplemental Statements of the Case (SSOCs), which cumulatively included a discussion of the facts of the claims, pertinent laws and regulations, notification of the bases of the decisions, and a summary of the evidence considered to reach the decisions. In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. Moreover, neither the Veteran nor his attorney has demonstrated any prejudicial or harmful error in VCAA notice, and any presumption of error as to the first element of VCAA notice has been rebutted in this case. See Shinseki v. Sanders, supra. To fulfill its statutory duty to assist, the RO afforded the Veteran with medical examinations in connection with his increased rating claim in December 2003, January 2008, and May 2009. It is notable that neither the December 2003 nor the January 2008 VA medical examinations included claims folder review. However, the record shows that the RO obtained a November 2008 supplemental medical opinion based on review of the claims folder from the physician who co- signed the January 2008 report and the May 2009 examination included claims folder review. Also, the Veteran's service treatment records (STRs) are of record. Further, post- service treatment records adequately identified as relevant to the claims have been obtained, to the extent possible, and are associated with the claims folder. The Veteran has not made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. The Veteran specifically indicated in the June 2009 SSOC notice response that he had no other information or evidence to submit and asked that his case be returned to the Board as soon as possible for appellate consideration. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims adjudicated herein. Accordingly, the Board will proceed with appellate review. II. Increased Evaluation for Hypoglycemia The Board has thoroughly reviewed all the evidence in the Veteran's claims folder, including a November 15, 2009, letter from the Veteran's attorney. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veteran seeks a compensable disability evaluation for hypoglycemia prior to July 5, 2007, and a disability evaluation higher than 10 percent for diabetes mellitus with history of hypoglycemia from July 5, 2007. The Veteran is rated under hyphenated Diagnostic Code (DC) 7999-7913 prior to July 5, 2007, and is, therefrom, rated under DC 7913. See 38 C.F.R. § 4.27. He filed his claim for an increased rating in February 2003. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of the veteran's condition. Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under DC 7913, diabetes mellitus which is manageable by restricted diet only is rated 10 percent disabling. Diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet, is rated 20 percent disabling. Diabetes requiring insulin, restricted diet, and regulation of activities is rated at 40 percent. Where the disorder requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated, it is rated 60 percent disabling. Diabetes requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated, is rated 100 percent disabling. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119. A. The period prior to July 5, 2007 As stated above, the Veteran is currently in receipt of a noncompensable disability evaluation for hypoglycemia for the portion of the appeal period prior to July 5, 2007. See 38 C.F.R. § 4.31. In order for the Veteran to receive a compensable rating of 10 percent, the evidence must show that his hypoglycemia is manageable by restricted diet only. In the present case, the Board notes that there is conflicting evidence of record regarding whether the Veteran's hypoglycemia was manageable by restricted diet only for this portion of the claim and appeal period. As for evidence against the claim, the Board notes that the Veteran showed no evidence of pathological hypoglycemic disorder at the January 2008 VA medical examination. The examiner explained that, despite the report of a positive glucose tolerance test in 1979, the test was known to be unreliable and misleading and the Veteran's multiple fasting blood sugars over time indicate values well above the level of concern for hypoglycemic disorder. Although the January 2008 examination report is noted to be outside this portion of the appeal period, it is clearly relevant as the January 2008 VA examiner suggests that the Veteran did not even have symptoms of hypoglycemia during the relevant portion of the period. This evidence indicates that the Veteran is not entitled to a compensable rating for his hypoglycemia. However, in support of the claim, the Veteran had repeatedly reported in written statements that he managed his hypoglycemic symptomatology by eating. For example, in a March 2006 statement, the Veteran wrote that his hypoglycemia required a strict dietary schedule which included "costly foods" and "inconvenient snacks." Also, the impression noted by the December 2003 VA endocrine diseases examiner of "episodes of hypoglycemia which are related to dietary habits or improper scheduling of meals" tends to support the Veteran's assertion that his hypoglycemia was manageable by diet alone. Furthermore, an April 2003 VA treatment record shows that a nurse practitioner noted an assessment of active hypoglycemia and wrote that she discussed diet with the Veteran. This evidence, which indicates management of hypoglycemia by diet, suggests that the Veteran is entitled to a 10 percent rating for his hypoglycemia. After careful consideration of the record to include the evidence above, the Board resolves all reasonable doubt in favor of the Veteran regarding the degree of disability and finds that entitlement to a 10 percent disability rating for hypoglycemia for the portion of the period prior to July 5, 2007, is warranted. 38 C.F.R. § 4.3. While the Board has considered whether staged ratings are warranted for this period, the factual findings do not show distinct time periods where the Veteran's hypoglycemia exhibited symptoms that would warrant different ratings. See Hart, supra. Thus, a staged rating is not warranted. However, the Veteran is not entitled to the next higher disability rating of 20 percent for this portion of the claim/appeal period. He does not contend, and the evidence does not otherwise show that treatment of his hypoglycemia requires use of oral medication or insulin, which is required for a 20 percent disability rating. B. The period from July 5, 2007 As stated above, the Veteran is currently in receipt of a 10 percent disability evaluation for diabetes mellitus with hypoglycemia for the portion of the appeal period from July 5, 2007. See 38 C.F.R. § 4.31. In order for the Veteran to receive the next higher rating of 20 percent, the evidence must show that management of his diabetes mellitus with hypoglycemia requires insulin and restricted diet, or oral hypoglycemic agent and restricted diet. However, the evidence does not support the assignment of a schedular rating of 20 percent. The Veteran does not contend, and the evidence does not show, that he takes any medication to manage his diabetes mellitus. Instead, it shows that he manages his symptomatology with diet alone. In this regard, the Board notes that the Veteran's attorney wrote in March 2009 correspondence that the Veteran's condition requires him to maintain a controlled diet and that "medication management [was] presently being considered." Approximately two months later, the May 2009 VA diabetes examiner noted that the Veteran's current treatment for his claimed disability remained diet alone because he had both diabetes mellitus and reactive hypoglycemia, and the condition was difficult to control since oral medications and insulin tend to aggravate hypoglycemia. Despite the consideration of use of medications to manage diabetes mellitus with hypoglycemia, mere consideration is not sufficient to warrant an increased evaluation of 20 percent because the schedular criteria specifically contemplates required use of medication. Thus, the preponderance of the evidence weighs against the assignment of a disability rating higher than 10 percent for diabetes mellitus with hypoglycemia. Based on the foregoing, the Board finds that the Veteran's diabetes mellitus with hypoglycemia more closely approximates the criteria for the currently assigned 10 percent disability rating under DC 7913 throughout this portion of the appeal period and entitlement to a higher rating on a schedular basis is not warranted. While the Board has considered whether staged ratings are warranted for this period, the factual findings do not show distinct time periods in which the Veteran's diabetes mellitus with hypoglycemia exhibited symptoms that would warrant different ratings. See Hart, supra. Thus, a staged rating is not warranted. C. Other Considerations Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, after careful review of the available diagnostic codes and the evidence of record, the Board finds there are no other codes that provide a basis to assign an evaluation higher than the rating assigned herein. The Board has further considered whether the Veteran's hypoglycemia and/or diabetes mellitus with hypoglycemia warrants referral for consideration of a higher rating on an extraschedular basis. 38 C.F.R. § 3.321(b); see Barringer v. Peake, 22 Vet. App. 242 (2008). In this regard, the Board notes that the Veteran's wife wrote in a statement received in February 2009 that he has had to miss work or leave work or meetings early due to hypoglycemia symptomatology. However, after review of the record, the Board finds that any limits on the Veteran's employability due to his service-connected disability have been contemplated in the currently assigned 10 percent disability rating under DC 7913. The evidence does not sufficiently reflect that the Veteran's claimed disability has necessitated any frequent periods of hospitalization or caused marked interference with employment. This conclusion is supported by the October 2008 decision of the Social Security Administration, which found that the Veteran was disabled but that his claimed service-connected disability was "non-severe" at that time. The record does not show an exceptional or unusual disability picture not contemplated by the regular schedular standards that would warrant consideration of the assignment of an extraschedular rating. Since application of the regular schedular standards is not rendered impracticable in this case, referral of this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for consideration of the assignment of an extraschedular evaluation is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim for an increased rating for the period discussed here and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a 10 percent disability evaluation for service-connected hypoglycemia for the portion of the appeal period prior to July 5, 2007, is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to an evaluation higher than 10 percent for service-connected diabetes mellitus with history of hypoglycemia for the portion of the appeal period from July 5, 2007 is denied. REMAND In the October 2008 Joint Motion, the parties agreed that the Board had not provided an adequate statement of reasons and bases with respect to the Veteran's claim for GERD because it did not address whether the Veteran is entitled to service connection on a secondary basis as related to his service-connected hypoglycemia. The parties further agreed that the Board erred in its duty to assist by failing to ensure that VA procured an adequate examination in connection with the claim. The parties explained that the medical nexus opinion provided by the March 2005 VA examiner did not address whether there was a relationship between the Veteran's service-connected hypoglycemia and GERD. Thus, in consideration of the foregoing, the Board finds that a remand is necessary in order to schedule the Veteran for a medical examination and obtain a medical opinion based on review of the claims folder that addresses whether the Veteran's GERD is caused or aggravated by his service- connected hypoglycemia. The parties also agreed that the Board failed to provide an adequate statement of reasons and bases for its conclusion that the Veteran's lumbar spine injury was not aggravated by service. The parties specifically noted that the Board did not adequately address the Veteran's own assertions about worsening symptomatology and failed to address the testimony of his wife and former commanding officer with respect to the claim. We also note that recently, in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009), the Federal Circuit recently emphasized that VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Although the Board notes that a medical opinion was previously obtained in connection with the claim in March 2005, in consideration of the foregoing, we find that a remand is necessary in order to obtain another medical opinion that considers the lay testimony regarding the continuity of symptomatology as well as the clinical documentation of record, and addresses the question of whether there is a nexus relationship between the Veteran's current lumbar spine disorder and active military service. Finally, we note that the Veteran's attorney has submitted a letter dated November 15, 2009, advancing arguments, with references to the evidentiary record, in support of service connection for GERD and lumbar spine disability. Attached was an October 2008 Social Security Award Letter, determining that the Veteran is disabled, without specifying the particular disabilities underlying the decision. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for appropriate medical examination for his claimed gastrointestinal disorder. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and all findings reported in detail. a. Based on review of the claims folder, including the medical evidence identified on page 2 of the November 15, 2009, letter from the Veteran's attorney, the examiner should identify any gastrointestinal disorder which has been demonstrated by the Veteran since filing his claim in February 2003, and state whether it is at least as likely as not (i.e., at least a 50 percent degree of probability) that any identified current gastrointestinal disorder is related to active military service, to include any symptomatology shown therein; or whether such a relationship to service is unlikely (i.e., a probability of less than 50 percent. b. If the examiner determines it is unlikely that the Veteran's current gastrointestinal disorder is causally or etiologically related to service, the examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent degree of probability), or unlikely (less than a 50 percent probability) that the Veteran's current gastrointestinal disorder has been caused or aggravated by his service-connected hypoglycemia (or diabetes mellitus with hypoglycemia) disability. c. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. d. Note: The term "aggravated" in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the baseline level of disability. e. If the opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. 2. Schedule the Veteran for appropriate medical examination for his claimed lumbar spine disorder. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and all findings reported in detail. a. Given the clinical documentation of record and the Veteran's complaints and the lay statements of his wife and former commanding officer of continuity of low back symptomatology since service, and noting the medical evidence identified on pages 2 and 3 of the November 15, 2009, letter from the Veteran's attorney, the examiner should identify any lumbar spine disorder which has been demonstrated by the Veteran since filing his claim in February 2003, and state whether the records show by clear and unmistakable evidence (which requires a very high likelihood, much greater than 50-50 degree of probability) that a lumbar spine disorder pre-existed the Veteran's active service. b. If the examiner determines that a lumbar spine disorder clearly and unmistakably existed prior to service, then the examiner should provide an opinion as to whether there were any increased symptoms in service and, if so, whether such symptoms clearly and unmistakably represented mere natural progression of the pre-existing disorder, as opposed to aggravation. c. If the examiner determines that a lumbar spine disorder did not clearly and unmistakably exist prior to service, the examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent degree of probability), or unlikely (less than a 50 percent probability) that the Veteran's current lumbar spine disorder arose in or is causally related to active military service, to include any symptomatology shown therein. d. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. e. Note: The term "aggravation" in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the baseline level of disability. f. If the opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. 3. After the above development has been accomplished to the extent possible, the Veteran's claims should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and given an appropriate period of time for response. The purpose of this remand is to obtain additional development and ensure due process. The Board does not intimate a decision, either favorable or unfavorable, at this time. 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. 2009). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs