Citation Nr: 1031374 Decision Date: 08/20/10 Archive Date: 08/24/10 DOCKET NO. 06-31 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a bilateral eye disability, to include diabetic retinopathy and ocular ischemic syndrome (OIS), to include as secondary to service-connected diabetes mellitus and status-post CVA with mild aphasia associated with coronary artery disease. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. This matter comes to the Board of Veterans' Appeals (Board) from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issue of entitlement to service connection for a bilateral eye disability, to include diabetic retinopathy and OIS, to include as secondary to service-connected diabetes mellitus and status-post CVA with mild aphasia associated with coronary artery disease being remanded 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 It has not been shown by competent and probative evidence that the Veteran incurred hypertension in service, that hypertension manifested to a compensable degree within the first post-service year or that hypertension is causally related to service or service-connected diabetes mellitus, including by aggravation. CONCLUSION OF LAW Service connection for hypertension is not established. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2008); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In February 2005, the Veteran submitted a claim of entitlement to service connection for diabetes mellitus, and the RO responded by sending him appropriate notice of how to substantiate that claim by a letter dated in February 2005. This letter provided the Veteran notice of how to substantiate a claim for service connection on a direct basis, as well as his and VA's respective responsibilities for obtaining evidence in support of the claim. Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In developing the case, the RO identified several disabilities that could potentially be related to the claimed diabetes mellitus, including hypertension. In the subsequent January 2006 rating decision, the RO granted service connection for diabetes mellitus, and for carotid artery stenosis, status post cerebrovascular accident with mild aphasia, as secondary to diabetes mellitus. The RO also denied service connection for hypertension as secondary to diabetes mellitus. Given that the Veteran's original claim was specifically for diabetes, the February 2005 notice letter did not provide the Veteran notice of how to substantiate a claim for service connection of a disability on a secondary basis. Nevertheless, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran was ultimately provided the necessary information so as to allow a reasonable person to understand how to substantiate the claim; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the notice letter did not include specific information pertaining to establishing secondary service connection, both as proximately due to a service-connected disability and by aggravation from a service-connected disability. As discussed, this is because service connection was not granted for the disability underlying the secondary service connection issue, specifically the Veteran's diabetes mellitus, until after the initial rating decision. Irrespective of the reasons for the notice deficiency, the Veteran was provided a thorough explanation as to the basis of the RO's denial in the rating decision and Statement of the Case, and statements and other evidence that the Veteran and his representative have submitted demonstrate that the Veteran has actual knowledge of the secondary service connection requirements. His arguments have been responsive to the legal requirements for secondary service connection. See e.g. July 2010 Informal Hearing Presentation (IHP). Based on the arguments raised by the Veteran and his representative, they have demonstrated actual knowledge of the requirements for establishing service connection on a secondary basis and it is reasonable to expect that the Veteran understands what was needed to prevail. Thus, the Board finds that no prejudice results in proceeding with adjudication of the Veteran's claim for hypertension as secondary to diabetes mellitus. VA has obtained the Veteran's service treatment records, VA medical records, Social Security Administration (SSA) disability claim records, assisted the Veteran in obtaining evidence, afforded the a Veteran physical examination, and obtained a medical opinions as to the etiology of his hypertension. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examinations obtained in this case are adequate. They were predicated on a substantial review of the record and medical findings and considered the Veteran's reported history and complaints. The examination reports address the question of whether the nonservice-connected hypertension was caused or aggravated by his service-connected diabetes mellitus. 38 C.F.R. § 3.310(b) (2009); Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2009). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2009). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Board notes that 38 C.F.R. § 3.310 was amended during the course of the Veteran's claim and appeal. The intended effect of this amendment was to conform VA regulations to the Allen decision. 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b). However, given the possibility that these changes could potentially be interpreted as substantive, and because the Veteran's claim was pending before the regulatory change was made, the Board will apply the version of 38 C.F.R. § 3.310 that was in effect before the change, which arguably favors the claimant. Accordingly, the Board will evaluate the disability, irrespective of any baseline. Service connection for hypertension may be granted if the disability becomes manifest to a compensable degree within one year following separation from active military service. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran had 2 years of active service. His service treatment records for this period contain no diagnosis to or reference of hypertension. He received a pre-induction examination in July 1965. Upon clinical evaluation at this time his vascular system was normal. His blood pressure was 120/60 at this time. Additional physical examination conducted in November 1965 revealed no additional defects and the Veteran was found fit for military service. See July 1965 report of medical examination. He received a separation examination in September 1967. Clinical evaluation at this time also showed a normal vascular system. His blood pressure was 124/82 at this time. See September 1967 report of medical examination. At this time he denied having ever had or then having high or low blood pressure. See September 1967 report of medical history. In November 1967 the Veteran certified that there had been no change in his medical condition since his last examination, with no exceptions. See November 1967 Statement of Medical Condition (AR 40-500). The evidence of record does not disclose diagnosis of hypertension within the first post-service year, or any blood pressure readings dated therein. Of the evidence in the claims file, the earliest mention of hypertension appears in a December 2000 record from the Lakeland Regional Health System. This record notes diagnoses of "hypertension [not otherwise specified]" and "diabetes" without complications. Numerous records dated thereafter note hypertension. Most of them do not address the history or etiology thereof, although there is evidence of record relevant in this regard. In June 2005 the Veteran was afforded a VA examination, particularly related to diabetes mellitus and any related conditions. At this examination the Veteran reported having been diagnosed as having hypertension in the early 1970s. He denied a history of dialysis or renal failure. He had a history of myocardial infarction (MI) times 3, with the first MI 15 years prior, the second 4-5 years thereafter and the third MI 4 years before the examination. He also reported having been assessed as having diabetes mellitus 15 years ago. The examiner assessed diabetes mellitus and hypertension, "diagnosis preceding that of diabetes." The examiner noted that renal functions "[were] being obtained to determine if there [was] nexus [between hypertension] and the diabetes." Renal functions were obtained and were within normal limits, as was urinalysis. The examiner thus concluded that hypertension was not likely caused or aggravated by diabetes at that time. In September 2005 the Veteran was also provided a VA examination pertaining to the heart. The examiner noted in the report that the Veteran related having been assessed as having hypertension approximately 20 years prior, or sometime in the early 1970s. In this regard the Veteran denied having had any symptoms thereof, but did acknowledge having been prescribed medication. He also reported a history of type 2 diabetes mellitus, with an onset of 15 or 16 years prior, when he was around the age of 45. The examiner also noted the Veteran's cardiac history, as described above. Based upon the Veteran's history and examination, the examiner assessed hypertension, controlled, with onset prior to diagnosis of diabetes mellitus and "not likely secondary to diabetes mellitus." The Veteran submitted a letter from J.T.H., D.O. dated in March 2006 and received that same month by VA. In this letter, Dr. J.T.H. noted that the Veteran had diabetes type II. He further stated in the letter that "[t]his is probably a contributing factor for his heart attack and stroke in [his] opinion." The Veteran asserts that this opinion is sufficient to grant the claim. See September 2006 statement from Veteran in VA Form 9 (Substantive Appeal). The Board acknowledges the opinion from Dr. J.T.H.; however, this opinion does not speak to any relationship between diabetes mellitus and hypertension. Rather, it addresses coronary artery disease (heart attack) and carotid artery stenosis and status- post cerebrovascular accident (CVA) with mild aphasia associated with coronary artery disease (stroke). It is thus not probative on the issue of service connection of hypertension as secondary to service-connected diabetes mellitus and cannot serve to substantiate the claim. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (holding that the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). On a presumptive basis, the claim cannot be established. The Veteran has reported having been diagnosed as having hypertension in the early 1970s and there appears no clinical evidence of hypertension dated within the first post-service year. It is thus impossible for the Board to ascertain if such a disability manifested to a compensable degree within the applicable period. Moreover, the Veterans' reported initial diagnosis falls well outside of the applicable presumptive period. 38 C.F.R. §§ 3.307, 3.309. Likewise, the Board does not find that hypertension was incurred or aggravated in service. There appears no diagnosis thereof in service and the Veteran denied a history thereof both at entrance and separation. See respective reports of medical examinations. In this regard, the Board notes the documented in-service blood pressure reading of 124/82 taken at discharge. VA regulations provide that the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Here, there is no blood pressure reading in service that suggests the presence of hypertension as defined by VA regulations. Accordingly, service connection cannot be established on this basis. The Veteran's claim predominately hinges upon the question of service connection for hypertension as secondary to his service- connected diabetes mellitus. This is, in fact, the only contention that he and his representative have made. See July 2010 IHP. Moreover, a review of the record discloses no suggestion of any relationship to any other service-connected disability, particularly coronary artery disease (CAD) or carotid artery stenosis and status-post CVA with mild aphasia associated with CAD. In this regard, the Board notes the case of Robinson v. Mansfield, 21 Vet. App. 545 (2008), wherein the Court held that the Board is not obligated to investigate all possible theories of entitlement. In reaching that conclusion, the Court observed that the duty to consider a potential theory of entitlement or to provide a medical examination as to whether a particular theory of service connection has merit is explicitly limited to situations where there is already some evidence in the record of a current disability and some evidence that indicates that the disability may be associated with the claimant's military service or to a service-connected disability. 38 U.S.C. § 5103A(d)(2)(B). The Court determined that, had Congress had wanted the Secretary to automatically provide an examination on all possible theories, § 5103A would not read the way it does. Thus, the claim cannot be substantiated on a direct basis or as secondary to these service-connected disabilities, and no examination is necessary in regard to these theories. McLendon, supra. Service connection for hypertension as secondary to diabetes mellitus is also not established. The Board acknowledges the Veteran's assertions, but as is disclosed by the record, and conceded by the Veteran, the diagnosis of hypertension preceded that of diabetes mellitus. In this regard, repeated VA examinations have resulted in negative etiologic opinions, including as due to aggravation of hypertension by diabetes mellitus. As noted upon VA examination in June 2005, renal functions were normal, which was found to indicate no relationship, either directly or through aggravation, between the Veteran's hypertension and his service-connected diabetes mellitus. Moreover, the earliest documented clinical evidence shows diagnosis of diabetes mellitus without complications. As to the Veteran's contentions, the Board recognizes that there are instances in which lay testimony can serve to establish an association between service and the claimed disability for the purpose of establishing service connection. For example, a lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder, and lay testimony as to a continuity of symptomatology can serve to establish a relationship between the claimed disability and service. However, the Veteran, as a lay person, is not competent to offer an opinion on a matter clearly requiring medical expertise, such as establishing a causal relationship between his hypertension and diabetes mellitus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, this is not a case in which the appellant's lay beliefs alone can serve to establish entitlement to service connection for hypertension as secondary to diabetes mellitus. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). Therefore, given the negative medical opinions of record, the Board concludes that the preponderance of the evidence is against the claim. Accordingly, it must be denied. Gilbert, supra. ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus is denied. REMAND The Veteran's claim initially encompassed service connection of diabetic retinopathy, as secondary to his service-connected diabetes mellitus. The Veteran is now also seeking entitlement to service connection for OIS on this basis. See July 2010 IHP. Moreover, as outlined below, the evidence of record also indicates that the Veteran may have a disability of the eyes attributable, either directly or through aggravation, to his service-connected status-post CVA with mild aphasia associated with coronary artery disease. The U.S. Court of Appeals for Veterans Claims (Court) recently held that a claim for service connection may encompass claims for service connection of any disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The record discloses that the Veteran seeks compensation for diabetic retinopathy as well as OIS and that he may have an eye disorder attributable to diabetes mellitus and/or status-post CVA with mild aphasia associated with coronary artery disease. Accordingly, the claim has been recharacterized as stated above. As noted above, the Veteran was afforded a VA examination pertaining to diabetes mellitus in June 2005. At this time, the Veteran reported a history of decreased vision over the past year. Examination of the eyes at this time noted an irregularity in the blood vessels between 9 and 6 o'clock. The examiner noted difficulty because a dilated eye exam was not conducted. The scleras were non-icteric, and the pupils were equal and reactive to light and accommodation. The visual fields were grossly intact. The examiner ordered a vision examination due to the impression that there may be a vascular component. In July 2005 the Veteran was provided a VA eye examination in furtherance of examining whether the Veteran had an eye disorder, particularly diabetic retinopathy, secondary to his service- connected diabetes mellitus. At the examination the Veteran denied any injuries or surgeries of the eyes, but he did report having noticed a decrease in vision in the right eye, particularly around the age of 25, but the Veteran believed he was "born with it." Examination resulted in an assessment of reduced vision in the right eye, correctable to 20/25 minus. The examiner suspected that this was related to cataract shift or lenticular (relating to the lens) change in the right eye, and not directly related to diabetes. The examiner noted that the Veteran exhibited no diabetic neuropathy. A VA consult/physical therapy note dated in late August 2005 notes a history of a CVA with residuals and a history of a CVA in early that same month. This note documents that the Veteran complained that his vision had been affected since the CVA and at times he was unable to see as well as other times. A VA community home care/plan of care follow-up note dated a week later in August 2005 documents a call received from a home care nurse reporting that the Veteran's left eye conjunctiva was red, with no discharge, pain or blurred vision. The right eye also looked slightly pink. The Veteran was advised to come to the VA medical center for evaluation, but expressed reluctance to do so. As noted above, the Veteran received a VA heart examination in September 2005. This examination notes that the Veteran's claims file was provided and reviewed, yet oddly states that the July 2005 VA eye examination resulted in a diagnosis of diabetic retinopathy. Examination at this time showed pupils equal, round, reactive to light and accommodation (PERRLA). Extraocular motility (EOM) was intact. Red reflex was present. The examiner noted that recent eye exam showed that there was bilateral diabetic neuropathy. The Veteran reported that since his last VA examination that his vision had deteriorated. He expressed his belief that this was secondary to his CVA in late July. The scleras were creamy white; however, on the left eye there was significant erythema, which the Veteran reported as having been present since the CVA. The day following the VA heart examination, the Veteran received a VA neurology consultation. The report associated therewith notes that the Veteran's main complaint was actually of his left eye. This eye was noted as very painful and red, and the Veteran reported difficulty moving it as well as with vision. He described his vision in this eye as "blurry." The Veteran was referred for an optometry consultation that same day. The optometry consultation note documents that the Veteran complained of decreased vision in the left eye greater than that in the right eye since his CVA 6 weeks prior. At this time, the Veteran also reported feeling that his left eye had been red and that he had morning discomfort without discharge since his recent CVA. Also noted was a history of corneal abrasion to an unspecified eye over 20 years prior, and non-insulin dependent diabetes mellitus since at least 1990, hypertension and heart attacks. The examiner noted the results of the July 2005 VA examination, which showed reduced vision of the right eye (OD), with myopic shift correctable for 20/25 minus, suspect lenticular etiology and diabetes mellitus without (s) retinopathy in both eyes. Nevertheless, examination resulted in diagnoses of branch retinal vein and/or artery occlusion of the left eye, secondary rubeiosis iridis of the left eye, mixed cataracts bilaterally, and diabetes mellitus with retinopathy of the left eye, without CSME (clinically significant macular edema) or active neurovasculitis other than rubeosis of the left eye. The need for a retina specialty consultation was discussed with the Veteran. A couple of days later in September 2005 the Veteran were seen for another ophthalmology consultation at the Battle Creek VA Medical Center. He was treated for NVI (neurovascularization of the iris)/NVA (neurovascular anomalies) of the left eye likely due to BRVO (branch retinal vein obstruction/occlusion) and chronic iritis of the left eye. Subsequent records document similar impressions, as well as OIS of the left eye and treatment thereof. See e.g. November 2005 ophthalmology note. A February 2006 VA ophthalmology outpatient follow-up note documents a history of BRVO and OIS of the left eye with complete occlusion of the ipsilateral (same side) carotid. It was noted that the Veteran had been treated for this with PRP three times. A March 2006 addendum to this note documents a similar history, as well as 1-2 NS with cortical changes of the right eye and slight attenuated vessels. However, diabetes mellitus without BDR (background diabetic retinopathy) was assessed at this time. Further examination is necessary to decide this claim. The evidence outlined above indicates that the Veteran may have an eye disability either attributable to his service-connected diabetes mellitus or carotid artery stenosis and status-post CVA with mild aphasia associated with coronary artery disease. It is particularly telling in this regard that following the Veteran's July 2005 stroke (CVA) his vision in his left eye began to significantly deteriorate and he suffered stenosis of the left carotid artery. Moreover, although much of this evidence suggests that the right eye has apparently been spared, the March 2006 ophthalmology addendum notes cortical changes of the right eye and slight attenuated vessels. In short, this history suggests that the Veteran may have bilateral eye disabilities secondary to either his diabetes mellitus, or particularly his status-post CVA with mild aphasia associated with coronary artery disease. Moreover, given the complex nature of the Veteran's eye disorders, an examination would be of great assistance to the Board. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board recognizes that the Veteran has sufficiently demonstrated actual knowledge of the evidence and information necessary to substantiate a claim for service connection on a secondary basis. Sanders/Simmons, supra. Nevertheless, in an abundance of caution and in the interest of efficiency, the Veteran should be provided such notice upon remand of this issue. 38 C.F.R. § 3.310 (2009); Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice that notifies him of the information and evidence not of record that is necessary to substantiate his claim for service-connection of diabetic retinopathy and OIS on a secondary basis. This notice should provide the Veteran with both versions of 38 C.F.R. § 3.310, which was amended during the course of this appeal to implement the decision in Allen v. Principi, 7 Vet. App. 439 (1995), that addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service- connected condition. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). This notice must also inform the Veteran of which information and evidence, if any, that he is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. 2. Thereafter, the Veteran should be afforded a VA examination by an appropriate medical professional for an opinion as to the nature and etiology of his claimed diabetic retinopathy, OIS and any diagnosed disability of the eyes. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and following this review offer comments and an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that diabetic retinopathy, OIS or any diagnosed eye disability (of either or both eyes) is causally or etiologically related to the Veteran's service-connected diabetes mellitus and/or his service-connected carotid artery stenosis and status-post CVA with mild aphasia associated with coronary artery disease. If diabetic retinopathy, OIS or any diagnosed eye disability (of either or both eyes) is not caused by his service-connected diabetes mellitus or status-post CVA with mild aphasia associated with coronary artery disease, the examiner should comment as to whether the Veteran's service-connected diabetes mellitus or status-post CVA with mild aphasia associated with coronary artery disease chronically worsens or increases the severity of diabetic retinopathy, OIS or any diagnosed eye disability (of either or both eyes) beyond the normal progression of the disease. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The Veteran's claims file must be made available to the examiner for review in conjunction with the examination. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Aggravation is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. 3. After the development requested above has been completed to the extent possible, review the record and readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before this case is returned to the Board. 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. 2009). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs