Citation Nr: 1036588	
Decision Date: 09/28/10    Archive Date: 10/05/10

DOCKET NO.  05-17 816	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.	Entitlement to service connection for lumbar and thoracic 
degenerative disease with disc herniation.

2.	Entitlement to service connection for a left foot condition to 
include infections of the second and third toes to include a 
resultant systemic infection.

3.	Entitlement to service connection for diabetes mellitus, type 
I.

4.	Entitlement to service connection for diabetic retinopathy.

5.	Entitlement to service connection for chronic fatigue.

6.	Entitlement to service connection for fracture injury to 
spine.

7.	Entitlement to service connection for radiculopathy.

8.	Entitlement to service connection for spondylosis.

9.	Entitlement to service connection for traumatic arthritis of 
the spine.

10.	 Entitlement to service connection for erectile dysfunction, 
claimed as sexual dysfunction, due to fracture injury of the 
spine.

11.	 Entitlement to service connection for depression with 
suicidal tendencies.

12.	 Entitlement to service connection for anxiety with insomnia 
secondary to  fracture injury to spine.

13.	Entitlement to service connection for the purpose of 
establishing eligibility to treatment.


REPRESENTATION

Appellant represented by:	Heather E. Vanhoose, Attorney at 
Law


ATTORNEY FOR THE BOARD

H. Yoo, Associate Counsel


INTRODUCTION

The Veteran had active service from April 2003 to June 2003.

This matter came before the Board of Veterans' Appeals (Board) on 
appeal from a decision of March 2004 by the Department of 
Veterans Affairs (VA) Cleveland, Ohio, Regional Office (RO).

The Veteran appeared and testified at a personal hearing in June 
2010 before the undersigned Veterans Law Judge at the Huntington, 
West Virginia, RO.  A transcript of the record has been 
associated with the claims file. 

The issue of entitlement to service connection for left foot 
condition to include infections of the second and third toes to 
include a resultant systemic infection 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.

Furthermore, in January 2009, the Veteran filed claims of 
entitlement to service connection for diabetes mellitus, type II;  
diabetic retinopathy; chronic fatigue; fracture injury to spine; 
radiculopathy; spondylosis; traumatic arthritis of the spine; 
erectile dysfunction, claimed as sexual dysfunction, due to 
fracture injury of the spine; depression with suicidal 
tendencies; anxiety with insomnia secondary to fracture injury to 
spine, and service connection for the purpose of establishing 
eligibility to treatment.  A November 2009 rating decision denied 
the Veteran's claims of entitlement to service connection for all 
issues claimed in January 2009. In November 2009, the Veteran 
submitted a Notice of Disagreement (NOD) with the November 2009 
rating decision.  As the filing of a NOD initiates appellate 
review, these claims must be remanded for the preparation of a 
Statement of the Case (SOC).  See Manlincon v. West, 12 Vet. App. 
238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995).


FINDING OF FACT

The Veteran's lumbar and thoracic degenerative disease with disc 
herniation are not a result of his military service.


CONCLUSION OF LAW

The criteria for establishing service connection for lumbar and 
thoracic degenerative disease with disc herniation have not been 
met.  38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113 (West 2002 & 
Supp. 2009); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2009).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has reviewed all of the evidence in the Veteran's 
claims folder.  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 of record. Indeed, the 
Federal Circuit has held that the Board must review the entire 
record, but does not have to discuss each piece of evidence.  
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  
Therefore, the Board will summarize the relevant evidence where 
appropriate, and the Board's analysis below will focus 
specifically on what the evidence shows, or fails to show, as to 
each claim.

Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 
3.156(a), 3.159 and 3.326(a) (2009).  Upon receipt of a complete 
or substantially complete application for benefits, VA is 
required to notify the claimant and his or her representative, if 
any, of any information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 
C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 
(2002).  Proper notice from VA must inform the claimant of any 
information and evidence not of record (1) that is necessary to 
substantiate the claim; (2) that VA will seek to provide; (3) 
that the claimant is expected to provide.  

In July 2003, the agency of original jurisdiction (AOJ) provided 
the notices required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 
C.F.R. § 3.159(b) (2009).  Specifically, the AOJ notified the 
Veteran of information and evidence necessary to substantiate the 
claims for service connection; information and evidence that VA 
would seek to provide; and information and evidence that the 
veteran was expected to provide. 

The notice requirements described above apply to all five 
elements of a service connection claim: (1) veteran status; (2) 
existence of disability; (3) connection between service and the 
disability; (4) degree of disability; and (5) effective date of 
benefits where a claim is granted.  Dingess/Hartman v. Nicholson, 
19 Vet. App. 473 (2006).  Attached to the September 2006 notice 
letter, the agency of original jurisdiction (AOJ) sent the 
Veteran notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b), to include as interpreted by Dingess.  

In March 2006, the Veteran was provided with a notice pursuant to 
Dingess.  Although it postdated the initial adjudication, the 
claim was subsequently readjudicated without taint from the prior 
decision and no prejudice is apparent.  See Prickett v. 
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully 
compliant notification followed by readjudication of the claim, 
such as an SOC or SSOC, is sufficient to cure a timing defect). 

The Board notes that the Veteran's representative stated at the 
June 2010 hearing of addition records to be submitted.  However, 
after 90 days, the record does not show that the Veteran or his 
representative to have submitted any outstanding records.  As the 
Court stated in Wood v. Derwinski, "[t]he duty to assist is not 
always a one-way street.  If a veteran wishes help, he cannot 
passively wait for it in those circumstances where he may or 
should have information that is essential in obtaining the 
putative evidence." 1 Vet. App. 190, 193, reconsidered, 1 Vet. 
App. 406 (1991); see also Wamhoff v. Brown, 8 Vet. App. 517 
(1996).  Therefore, the Board concludes that the Veteran has been 
provided with every opportunity to submit evidence and argument 
in support of his claim, and may proceed without prejudice to the 
Veteran. 

In addition, the VA has also done everything reasonably possible 
to assist the Veteran with respect to his claim for benefits, 
such as obtaining private and VA medical treatment records and 
providing a VA examinations.  The Board does not know of any 
additional relevant evidence which has not been obtained.  
Consequently, the duty to notify and assist has been met.

Service Connection

The Veteran claims that his lumbar and thoracic degenerative 
disease with disc herniation resulted from his military service 
from April to June 2003.

Service connection may be granted for a disability resulting from 
injury or disease incurred in or aggravated by active service.  
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  To establish service 
connection for the claimed disorder, there must be medical 
evidence of a current disability; medical or, in certain 
circumstances, lay evidence of in-service incurrence or 
aggravation of a disease or injury; and medical evidence of a 
nexus between the claimed in-service disease or injury and the 
current disability.  38 C.F.R § 3.303 (2008); see also Hickson v. 
West, 12 Vet. App. 247, 253 (1999).  

For the showing of chronic disease in service, there is required 
a combination of manifestations sufficient to identify the 
disease entity, and sufficient observation to establish 
chronicity at the time.  If a condition noted during service is 
not shown to be chronic, then generally, a showing of continuity 
of symptoms after service is required for service connection.  
See 38 C.F.R. § 3.303(b).  Service connection may also be granted 
for any disease diagnosed after discharge, when all the evidence, 
including that pertinent to service, establishes that the disease 
was incurred in service.  See 38 C.F.R. § 3.303(d).

Service connection may also be granted for chronic disorders, 
such as arthritis, when manifested to a compensable degree within 
one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 
1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

When determining whether a disability or disease was incurred in 
service, or preexisted service, a Veteran shall be presumed to 
have been in sound condition when examined, accepted, and 
enrolled for service, except as to defects, infirmities, or 
disorders noted at the time of the examination, acceptance, and 
enrollment, or where clear and unmistakable evidence demonstrates 
that the injury or disease existed before acceptance and 
enrollment and was not aggravated by such service.  38 U.S.C.A. § 
1111; 38 C.F.R. § 3.304(b).  To rebut the presumption of sound 
condition under 38 U.S.C.A. § 1111, VA must show by clear and 
unmistakable evidence both that the disease or injury existed 
prior to service and that the disease or injury was not 
aggravated by service.  38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 
Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089, 1093 
(Fed. Cir. 2004).  The Veteran is not required to show that the 
disease or injury increased in severity during service before 
VA's duty under the second prong of this rebuttal standard 
attaches.  See Cotant v. Principi, 17 Vet. App. 116, 132 (2003).

When no preexisting condition is noted upon entry into service, 
the Veteran is presumed to have been sound upon entry.  The 
burden then falls on the government to rebut the presumption of 
soundness by clear and unmistakable evidence that the Veteran's 
disability was both preexisting and not aggravated by service.  A 
preexisting injury or disease will be considered to have been 
aggravated by active service where there is an increase in 
disability during such service, unless there is a specific 
finding that the increase in disability is due to the natural 
progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 
3.306(a).  Aggravation may not be conceded where the disability 
underwent no increase in severity during service on the basis of 
all the evidence of record pertaining to the manifestations of 
the disability prior to, during, and subsequent to service.  38 
U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b).  A preexisting 
disease or injury will be presumed to have been aggravated by 
service only if the evidence shows that the underlying disability 
underwent an increase in severity; the occurrence of symptoms, in 
the absence of an increase in the underlying severity, does not 
constitute aggravation of the disability.  Davis v. Principi, 276 
F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a).

Aggravation for purposes of entitlement to VA compensation 
benefits requires more than that a preexisting disorder become 
intermittently symptomatic during service; rather, there must be 
permanent advancement of the underlying pathology.  Aggravation 
is characterized by an increase in the severity of a disability 
during service, and a finding of aggravation is not appropriate 
in cases where the evidence specifically shows that the increase 
is due to the natural progress of the disease.  Furthermore, 
temporary or intermittent flare-ups of a preexisting disease 
during service are not sufficient to be considered aggravation of 
the disease unless the underlying condition, as contrasted to 
symptoms, is worsened.  See Jensen v. Brown, 4 Vet. App. 304, 
306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon 
v. Brown, 8 Vet. App. 529, 536-7 (1996).

The Veteran testified at the Board Hearing in June 2010 that he 
injured his back during service while marching and moving 
furniture.  He stated he sought treatment for his back pain as 
soon as he received a medical discharge from his military service 
and was treated primarily with pain medication.  The Board notes 
the Veteran has stated on numerous occasions that his back 
condition did not pre-exist service.   Specifically, in May 2005, 
the Veteran submitted a statement that he did not have disc 
degeneration in his back and that he was injured during basic 
training. 

The record indicates the Veteran was in receipt of Social 
Security disability prior to entering service.  In October 1990, 
the State of Ohio Rehabilitation Services and Commission, Bureau 
of Disability Determination, determined that the Veteran had been 
disabled since December 1989 from a back injury.  He was 
diagnosed with thoracic sprain.  Private medical records from 
January 1990 report the Veteran slipped on ice and fell, hitting 
his back on a cement step.  X-rays revealed subluxation of T-2, 
T-4, T-6 vertebra.  It was negative for fracture or osseous 
pathology and the vertebral bodies and disc bases were intact.  
In August 1990, the Veteran was treated by Dr. Thaler for 
twisting his back after falling through a porch floor.  X-rays 
revealed some narrowing at L5, S1 and some narrowing of the 
anterior vertical body height.  According to private treatment 
records from the Veteran's private physician, Dr. R. F. Hawkins, 
the Veteran was treated for back pain due to a car accident in 
July 1997.  In February 2003, the Veteran withdrew receiving 
Social Security benefits as he entered the military.

According to the Veteran's in-service medical records, he 
reported in the February 2003 Medical Prescreen of Medical 
History Report and the Report of Medical History that he did not 
have recurrent back pain.  In addition, a note from Dr. R. F. 
Hawkins, the Veteran's private doctor, dated February 2003, 
stated, "Please [b]e advised that [the Veteran] is physically 
able to [b]e in [the] [m]ilitary."  However, it was noted in the 
Report of Medical Examination that the Veteran's spine was 
abnormal as he could not duck walk or stand from a kneeling 
position.  

In May 2003, soon after the Veteran entered the military, he 
complained of and was treated for pain in the lower back.  He 
reported that a back injury occurred from lifting a duffle bag.  
On examination, the Veteran had decreased range of motion with 
pain but had normal alignment.  

In May 2003, medical personnel initiated a discharge due to 
diabetes and obesity.  He was further treated for chest pain, low 
back pain, and elevated blood sugar as well.  The letter confirms 
the Veteran was placed on restricted physical activities.  He was 
subsequently approved for discharge and separated from service in 
June 2003.

According to the post-service treatment records, the Veteran 
initially sought treatment for his back pain in June 2003 soon 
after separation from service.  Since then he has received 
treatment from various private doctors as well as treatment at 
the VA medical center.  An MRI revealed degenerative disc disease 
present in the lumbar region, generalized disc bulging at the 
T12/L1 level, central disc intrusion causing encroachment on the 
spinal canal at the L3/L4 level, and an annular tear with broad 
based disc protrusion causing some encroachment on the spinal 
canal at the L4/L5 level.

In July 2003, a private neurologist, Dr. M. J. Meagher, stated in 
a letter to Dr. Hawkins, that the Veteran told him that he was 
injured while in the military during basic training.  Upon 
examination and review of the MRIs, Dr. Meagher found significant 
disc herniation at T8-T9 and T10-T11 but could not determine the 
cause of the  Veteran's numbness in his arms and hands.  

In August 2003, the Veteran underwent a VA examination where he 
reported his "back pain began on his third day of basic 
training.  He said he had to stand at attention with his rucksack 
and all of his civilian belongings for one and a half hours on 
two different days prior to the onset of his severe back pain... He 
denied having any problems with back pain prior to his military 
service at all."  The Veteran reported severe pain in his 
thoracic area and in the lumbar area and that it was severely 
impeding his daily activities.  A physical examination revealed 
forward bending of the lumbosacral spine from 0 to 70 degrees 
with pain at the end of range of motion.  He had normal extension 
was from 0 to 35 degrees, normal side bending right was 0 to 40 
degrees, normal side bending left from 0 to 35 degrees but 
complained of pain at the end of range of motion.  Rotation right 
and left was 0 to 50 degrees.  There were objective evidence of 
tenderness but no clear objective evidence of motion or weakness.

The August 2003 VA examiner noted there was no evidence in his 
claims file that the Veteran's back problems started prior to his 
entrance into the military and there was no record of physical 
examination upon entrance in the claims file.  Therefore, the VA 
examiner stated it is "most difficult to make a judgment as to 
the timing of the claimed injury.  It would be most helpful to 
have x-rays, MRI, or even military records over the last [five] 
years prior to his entrance to the military as evidence that this 
conditions were not preexisting as the x-rays suggest."

The Veteran's Social Security disability was reinstated in 
November 2004 after it was determined he was totally disabled 
with severe conditions of diabetes, degenerative disc disease, 
bipolar disorder, and anxiety disorder.  Numerous private 
treatment records associated with the claims file reflect the 
Veteran continued to receive treatment for his back condition 
from 2003 to 2008.

In May 2007, the Veteran underwent another VA examination where 
he reported he injured his back during service while carrying 150 
pounds in his pack.  A physical examination revealed extension at 
0 to 22 degrees, right lateral flexion at 0 to 30 degrees, left 
lateral flexion at 0 to 20 degrees; all without pain on motion.  
The Veteran's right lateral rotation was 0 to 20 degrees with 
pain on motion and left lateral rotation was 0 to 20 degrees 
without pain on motion.  No opinion was given on the etiology of 
the Veteran's back disorder. 

The Veteran was afforded another VA examination in February 2008.  
He reported his back problems started in service when he had to 
lift a heave rucksack and currently experiences constant severe 
pain.  A physical examination revealed extension at 0 to 20 
degrees without pain, flexion at 0 to 45 degrees with pain on 
motion, right and left lateral flexion at 0 to 30 degrees without 
pain on motion.  The Veteran's right and left lateral rotation 
was 0 to 22 degrees with no pain on motion.  Upon review of the 
medical evidence of record and the physical examination, the VA 
examiner opined there was no history of trauma during service 
"[h]owever, he had trauma before joining service, this is the 
likely reason for his spine problems.  The [thirty six] days of 
service has not altered the course of his pre-enlistment spine 
problems." 

Based on a review of the medical evidence of record, the Board 
finds that the Veteran's claim for lumbar and thoracic 
degenerative disease with disc herniation must be denied.  

The evidence of record clearly demonstrates the Veteran had prior 
history of back injury and pain prior to entering service.  An 
abnormal back condition was noted upon entrance into military 
service.  Therefore, as a back condition has been noted by a 
medical examiner at entrance, the presumption of soundness at 
entrance does not attach.  There are two medical opinions of 
record; one opinion from August 2003 where the VA examiner stated 
the Veteran did not have any history prior to enter service but 
could not determine when an injury occurred and another opinion 
from February 2008 finding earlier trauma prior to service is the 
cause of his current back problems.  

The Court has held that the Board may favor the opinion of one 
competent medical professional over that of another so long as an 
adequate statement of reasons and bases is provided.  See Owens 
v. Brown, 7 Vet. App. 429, 433 (1995).  Also, the probative value 
of a medical opinion largely depends upon the extent to which 
such an opinion was based on a thorough review of a Veteran's 
medical history, as contained in his claims file.

Furthermore, in cases where an examiner who has rendered a 
medical opinion has not had an opportunity to review the 
veteran's medical records, the medical opinion's probative value 
is substantially limited.  See Miller v. West, 11 Vet. App. 345, 
348 (1998) (bare conclusions without a factual predicate in the 
record are not considered probative); Gabrielson v. Brown, 7 Vet. 
App. 36, 40 (1994).

The Board notes that the August 2003 VA examiner did not have the 
opportunity to review all of the evidence now of record, namely, 
the examiner did not review the Veteran's SSA records prior to 
2003 which reported the Veteran's prior history of trauma to his 
back.  Subsequent to the August 2003 VA examination and opinion, 
a considerable amount of evidence has been associated with the 
claims file.  The February 2008 VA examination clearly outlined a 
review the evidence of the claims file in its entirety and 
rendered an opinion.  Therefore, the February 2008 examination 
and opinion that the Veteran's sustained back injuries prior to 
service and the pain experienced during service was continuation 
of the those injuries, not aggravated by service, is given 
greater probative value.

In addition, while the Veteran's history of in-service back pain 
and treatment is corroborated by service treatment records, it is 
not sufficiently probative to warrant a grant of service 
connection.  Generally, a lay person, while competent to report 
symptoms, is not competent to comment on the presence or etiology 
of a medical disorder.  See Espiritu v. Derwinski, 2 Vet. App. 
492.  Consequently, while the Veteran is competent to report that 
he experienced back pain in service he is not competent to report 
a chronic disorder resulted from the alleged injury.  

Therefore, although the Veteran is currently diagnosed with a 
chronic back disorder, based on the initial manifestation of 
chronic back disorder and the lack of evidence of aggravation and 
a clear negative nexus opinion, the evidence for the Veteran's 
claim is outweighed by the countervailing evidence.  As the 
preponderance of the evidence is against the claims, the benefit 
of the doubt doctrine is not applicable and the appeal must be 
denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 
49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  


ORDER

Entitlement to service connection for lumbar and thoracic 
degenerative disease with disc herniation is denied.


REMAND

The Veteran also claims that service connection is warranted for 
a left foot disability.  Unfortunately, a remand is required in 
this case.  Although the Board sincerely regrets the additional 
delay, it is necessary to ensure that there is a complete record 
upon which to decide the veteran's claim so that he is afforded 
every possible consideration.  VA has a duty to assist claimants 
in obtaining evidence needed to substantiate a claim.  38 
U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 
3.159(c) (2009).

At the June 2010 Board hearing, the Veteran testified that he 
developed an infection in his toes from wearing combat boots that 
was not the correct size.  He stated he was placed on "soft shoe 
detail" but was still told to wear combat boots and marched.  As 
a result of the infection, the Veteran sought treatment for his 
feet immediately after separation from service and required the 
amputation of his toes. 

The Veteran stated he lost 289 pounds prior to entering the 
military and was 212 pounds upon entrance.  Prior to the weight 
loss, the Veteran had a history of diabetes and was treated with 
medication.  However, the Veteran reported that since the weight 
loss and two years prior to entering service he was not taking 
any diabetic medication.  Therefore, he was told by the drill 
sergeant he was no longer considered diabetic.  The Veteran 
claims that he has not experienced any problems with his toes or 
feet prior to entering service and since service he has continued 
to have this problem. 

The Veteran further testified that soon after the hearing he 
would be receiving additional treatment with Dr. Keamer, a 
private doctor at Holzer Clinic.  The Veteran also stated he 
would ask Dr. Keamer for a opinion on the etiology of his current 
feet condition.

The Board finds these records have not been associated with the 
claims file and, therefore, in order to give the Veteran every 
consideration with respect to the present appeal, it is the 
Board's opinion that further development of the case is 
necessary.  

Furthermore, as indicated above, the November 2009 rating 
decision denied the Veteran's claims of entitlement to service 
connection for diabetes mellitus, type II;  diabetic retinopathy; 
chronic fatigue; fracture injury to spine; radiculopathy; 
spondylosis; traumatic arthritis of the spine; erectile 
dysfunction, claimed as sexual dysfunction, due to fracture 
injury of the spine; depression with suicidal tendencies; anxiety 
with insomnia secondary to fracture injury to spine, and service 
connection for the purpose of establishing eligibility to 
treatment.  In November 2009, the Veteran submitted a NOD to the 
November 2009 rating decision.  As the filing of a NOD initiates 
appellate review, these claims must be remanded for the 
preparation of a SOC.  See Manlincon, supra.

This case is being returned to the RO via the Appeals Management 
Center (AMC) in Washington, D.C., and the Veteran will be 
notified when further action on his part is required.

Accordingly, the case is REMANDED to the RO for the following 
action:

1.	Contact the Veteran and again request that 
he identify the complete facility name, 
address, and approximate dates of 
treatment, namely from Dr. Keamer, on a 
provided VA Form 21- 4142, Authorization 
and Consent to Release Information.  
Inform the Veteran to complete an 
additional VA Form 21-4142 for any other 
medical care provider(s) who may possess 
additional records referable to treatment 
for his  current foot disorder.  

After securing any necessary authorization 
or medical releases, the RO should request 
and associate with the claims file, the 
Veteran's treatment reports from all 
sources identified whose records have not 
previously been secured.  Notify the 
Veteran that he may obtain the evidence 
himself and send it to VA.

2.	The RO should issue the Veteran a SOC 
pertaining to the issues of entitlement to 
service connection for diabetes mellitus, 
type II;  diabetic retinopathy; chronic 
fatigue; fracture injury to spine; 
radiculopathy; spondylosis; traumatic 
arthritis of the spine; erectile 
dysfunction, claimed as sexual 
dysfunction, due to fracture injury of the 
spine; depression with suicidal 
tendencies; anxiety with insomnia 
secondary to fracture injury to spine, and 
service connection for the purpose of 
establishing eligibility to treatment. 

The RO must notify the Veteran that to 
vest the Board with jurisdiction over this 
issue, a timely substantive appeal to an 
adverse statement of the case must be 
filed in accordance with the requirements 
outlined in 38 C.F.R. § 20.202.

3.	When the development requested has been 
completed, the case should again be 
reviewed by the RO on the basis of the 
additional evidence.  If the benefit 
sought is not granted, the Veteran and his 
representative should be furnished a 
Supplemental Statement of the Case, and be 
afforded a reasonable opportunity to 
respond before the record is returned to 
the Board for further review.

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).



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals





 Department of Veterans Affairs