Citation Nr: 1107382 Decision Date: 02/24/11 Archive Date: 03/09/11 DOCKET NO. 08-25 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen claims of entitlement to service connection for respiratory disorder to include chronic obstructive pulmonary disorder (COPD) and emphysema. 2. Entitlement to service connection for erectile dysfunction (ED) claimed as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for an acquired psychiatric disorder to posttraumatic stress disorder (PTSD), anxiety disorder, and depression. 4. Entitlement to special monthly compensation (SMC) based on aid and attendance of another person or housebound. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The appellant, also referred to as the Veteran, served on active duty from May 1954 to August 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from July and August 2007 rating decisions by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In May 2008, a hearing was held before a Decision Review Officer (DRO) at the RO. In February 2010, a Travel Board hearing was held before the undersigned Acting Veterans Law Judge. Transcripts of both hearings are associated with the claims file. During the Travel Board hearing, the Veteran was granted an additional 30 days for submission of evidence. The Board has not received any additional evidence. The issues of entitlement to service connection for a respiratory disorder, entitlement to service connection for an acquired psychiatric disorder, and entitlement to SMC based on aid and attendance of another person or housebound are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. FINDINGS OF FACT 1. The RO denied service connection for emphysema in a September 2003 rating decision, denied service connection for COPD in a December 2004, and properly notified the Veteran of each decision, who did not initiate an appeal of either decision. 2. The September 2003 and December 2004 rating decisions are the last final decisions prior to the Veteran's request to reopen his respiratory claim in March 2007. 3. Evidence received since the September 2003 and December 2004 rating decisions regarding the Veteran's claim for service connection for a respiratory disorder is not cumulative of evidence previously of record and raises a reasonable possibility of substantiating the claim. 4. The Veteran's ED is not shown to be related to (caused or aggravated by) his service- connected diabetes mellitus. CONCLUSIONS OF LAW 1. The rating decisions of September 2003 and December 2004 are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2010). 2. New and material evidence has been received since the September 2003 and December 2004 rating decisions to reopen a claim for service connection for a respiratory disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 3. Service connection for ED, including as secondary to service- connected diabetes mellitus, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims that a respiratory disorder and ED are related to his service with the United States Army from May 1954 to August 1974. With regard to the respiratory disorder the Veteran contends that he was exposed to asbestos during his military service and that his current respiratory disorder is a result of this exposure. With regard to the ED, the Veteran claims that his ED is related to his service-connected diabetes mellitus. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition to the above requirements, there are alternative methods of establishing service connection under 38 C.F.R. § 3.303(b). For example, a claimant may establish service connection by chronicity. Chronicity is established if the claimant can demonstrate (1) the existence of a chronic disease in service and (2) present manifestations of the same disease. See Savage v. Gober, 10 Vet .App. 488 (1997). Alternatively, the claimant may establish service connection by continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Savage, 10 Vet. App. at 495. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision. The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after aggravation occurred. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105. However, pursuant to 38 C.F.R. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless the RO's determination in issues involving the requirement of the submission of new and material evidence, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001). 1. Respiratory Disorder The Veteran submitted an original claim for service connection for emphysema in April 2003. The RO denied this initial claim in a September 2003 rating decision finding that there was no link between the Veteran's current emphysema and his military service as there was no indication of emphysema in the Veteran's service treatment records and also finding that while the Veteran may have developed nicotine dependence during service, service connection for disability on the basis that it resulted from disease attributable to the use of tobacco products by a veteran during his or her service is prohibited for claims filed after June 9, 1998 pursuant to 38 U.S.C.A. § 1103. The Veteran submitted an original claim for service connection for COPD in May 2004. The RO denied this claim in a December 2004 rating decision finding that there was no link between the Veteran's current COPD and his military service as there was no indication of COPD in the Veteran's service treatment records and also finding that there was no nexus between the Veteran's current COPD and military service as the earliest evidence of COPD in the claims file is a December 2000 VA pulmonary function test report. Although the RO provided notice of these denials, the Veteran did not initiate an appeal with regard to either decision. Therefore, the RO's decisions of September 2003 and December 2004 are final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. In March 2007 the Veteran filed a new claim, specifically for emphysema and COPD on the basis of military exposure to asbestos. By rating decisions dated in July and August 2007, the RO found that the Veteran had failed to submit new and material evidence to reopen the claims. The Veteran submitted a Notice of Disagreement (NOD) in September 2007 and timely perfected an appeal. Evidence received since the July and August 2007 rating decisions includes a VA treatment report dated in June 2007 wherein a VA physician opined that the Veteran's deteriorating COPD was more likely than not related to the Veteran's asbestos/herbicides exposure during military service. Also of record is a private treatment record signed by Dr. W.M.A. and dated in March 2008 which notes that the Veteran has interstitial lung disease with some scarring and some severe diffuse emphysema which was consistent with the Veteran's history of exposure to asbestos, herbicides, and cigarette smoke. Also of record is a private treatment report signed by Dr. R.C.B. and dated in August 2008 wherein the doctor opined that the Veteran was noted to have asbestosis and the doctor further opined that the Veteran's respiratory disorder could be the result of exposure to herbicides. Upon review of the record, the Board finds that evidence received since the September 2003 and December 2004 rating decisions is new and material. Specifically, the June 2007 statement from a VA physician, the March 2008 statement from Dr. W.M.A., and the August 2008 statement from Dr. R.C.B. all relate the Veteran's current respiratory disorder to his claimed asbestos exposure during military service. Assuming the credibility of this evidence, see Justus, supra, the additional evidence is sufficiently significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Therefore, the claim is reopened. 38 U.S.C.A. § 5108. 2. ED The Veteran's service treatment records show no complaints of or treatment for ED. On separation/retirement examination, clinical evaluation of genitourinary system was normal. Postservice treatment records, to include VA and private show no specific treatment for ED. On June 2007 VA examination, the Veteran reported that he had experienced ED since 1968 when he returned from Vietnam. He indicated that he had complete dysfunction for 5 years or longer, pre-existing and prior to diabetes mellitus. Notably, VA records show diabetes mellitus was first diagnosed in 2005. A July 2007 rating decision granted the Veteran service connection for diabetes mellitus. The examiner noted "erectile dysfunction, preexisting, multifactorial - hypertension." At the May 2008 DRO hearing, the Veteran testified that his VA providers have told him that his ED is related to his diabetes mellitus. A May 2008 VA primary care record notes "erectile dysfunction- secondary to hypertension or secondary to medications including metoprolol." On May 2008 VA examination, the examiner noted that the Veteran's claims file had been reviewed in detail. The examiner opined: "[The Veteran's] claim is for secondary service connection for ED - originally was claimed as due to diabetes mellitus, but ED has been present for many years prior to diabetes mellitus. Now [the Veteran] claims ED is due to medications taken for service-connected migraine headaches; however, meds taken for migraines are Tylenol, aspirin, or ibuprofen. Whereas, he has a longstanding history of hypertension (HTN) and antihypertensive medications, which are much more likely to result in ED than the aforementioned over the counter analgesics taken intermittently for headaches. Therefore, it is less likely than not that the claimed ED is due to or related significantly to the service condition of migraine headaches or meds taken for that condition." At the February 2010 Travel Board hearing, the Veteran and his wife testified that the Veteran has had ED since returning from Vietnam. They stated that the Veteran, however, did not seek treatment until about three years earlier. It is neither shown by the record, nor alleged, that the Veteran has ED that is directly related to his period of active duty service; the instant claim is based strictly on a secondary service connection theory of entitlement. The Veteran contends that he has ED secondary to his service-connected diabetes mellitus. As has been noted, service connection is established for diabetes mellitus. The examiners who conducted July 2007 and May 2008 VA examinations concluded that the Veteran has ED which is "most probably" caused by HTN and medications associated with such, and not contributed to by his diabetes. The examiners specifically noted that the Veteran's ED began prior to his diabetes, so was most likely not caused by his diabetes. The Board finds that service connection for ED is not warranted. Although there is a diagnosis of ED, the most probative medical evidence of record establishes that such was not caused by or aggravated by the Veteran's service- connected diabetes mellitus. The VA examiners specifically concluded that ED is not related to or aggravated by diabetes mellitus and explained the rationale for this opinion (identifying HTN as a more likely cause.) The only support for the Veteran's contention that his ED is related to his service- connected diabetes is in his and his wife's statements (as well as testimony) of their beliefs that there is such a relationship. Because they are laypersons, their own assertions attributing current ED to his service-connected diabetes mellitus are not competent evidence. This is a medical question requiring medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply and the Veteran's claim of service connection for ED as secondary to diabetes mellitus must be denied. 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. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; 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). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim to reopen a previously and finally denied claim, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. To satisfy this requirement, VA must look at the bases for the denial in the prior decision and provide a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO provided the appellant pre-adjudication notice by letter dated in April 2007. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). The Veteran's pertinent treatment records regarding the ED issue are associated with the claims file. The RO arranged for VA examinations in June 2007 and May 2008. The Board finds, specifically that the May 2008 examination is adequate as it considered the evidence of record (notably, the June 2007 examiner did not review the claims file as such was not available) and the reported history of the Veteran, noted pertinent history and all physical findings necessary for a proper determination in the matter, and explained the rationale (stated in the outline of the evidence below) for the opinions offered. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has also been afforded the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER The appeal seeking to reopen a claim of service connection for respiratory disorder to include COPD and emphysema is granted. Service connection for erectile dysfunction claimed as secondary to service-connected diabetes mellitus is denied. REMAND At the February 2010 Travel Board hearing, the Veteran identified private treatment records pertinent to the issues at hand. Notably, the Veteran's representative requested that the RO obtain such records and forward them to the Board with a waiver. Upon review of the record, it is unclear whether or not such was done. Significantly, the Veteran testified that private treatment records from Scott and White show a diagnosis of PTSD. Furthermore, he stated that he was placed on medications for his depression. Historically, the Veteran's stressors have been conceded by VA, however a June 2007 VA examination noted that while the Veteran exhibited some of the symptoms of PTSD, such did not rise to the level for an Axis I diagnosis of PTSD. As the Veteran has identified treatment records that are pertinent to his claim, such, if in existence, must be secured. With regard to the respiratory claim it is unclear whether all of the private treatment records pertaining to this disability have been associated with the claims file. Specifically, an August 2008 letter from Dr. R.S. suggests that there were further procedures that the Veteran was to undergo regarding his lung disabilities. While it is unclear from the record whether or not further follow up was done, if it was, such records are pertinent and must be secured. The Veteran has alleged that he has asbestosis as a result of in- service asbestos exposure. As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy Veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21- 1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In his March 2007 claim the Veteran contends that during the period of 1959 to 1967 he served as an armored communications repairman, MOS 31B10/20. According to the Veteran his duties consisted of repairing all radio and communications equipment. The Veteran further contends that in 1963 the United States Army overhauled all of its communication equipment for armored tanks and personnel carriers, which included changing out all of the wiring harnesses and mounts for those vehicles. Prior to 1963, all wiring harnesses were wrapped and coated with asbestos. Further, the Veteran contends that he was promoted to Tactical Communications Specialist, MOS 31G40 in 1967 and from 1967 to 1974 oversaw communication equipment repairs performed by those he supervised. According to the Veteran, the tactical vans and armored vehicles in which the communications equipment were installed were insulated, fire proofed, and sound proofed using asbestos. As such, the Veteran contends that he was exposed to asbestos throughout the entirety of his military service. A review of the Veteran's DD Form 214 and service personnel records disclose that the Veteran did serve as an armored communications specialist and communications chief. However, it is unclear from reviewing the Veteran's service records whether he, in fact, was exposed to asbestos. The earliest evidence of a respiratory disorder is dated in December 2000. As above, in a VA treatment report dated in June 2007 a VA physician opined that the Veteran's deteriorating COPD was more than likely not related to the Veteran's asbestos/herbicides exposure during military service. Also of record is a private treatment record signed by Dr. W.M.A. and dated in March 2008 which notes that the Veteran has interstitial lung disease with some scarring and some severe diffuse emphysema which was consistent with the Veteran's history of exposure to asbestos, herbicides, and cigarette smoke. Also of record is a private treatment report signed by Dr. R.C.B. and dated in August 2008 wherein the doctor opined that the Veteran was noted to have asbestosis and the doctor further opined that the Veteran's respiratory disorder could be the result of exposure to herbicides. On remand, the AMC/RO should undertake efforts to obtain additional information that may corroborate the Veteran's claimed in-service exposure to asbestos. The AMC/RO should also schedule the Veteran for an examination to determine whether the Veteran's lung disorders to include asbestosis are related to his presumed exposure to herbicides or his alleged in-service asbestos exposure or any post-service asbestos exposure. Also, a review of the record is negative for psychiatric treatment but shows that the Veteran tested positive for depression during a June 2007 VA screening. Also, during a June 2007 VA psychiatric examination the examiner diagnosed the Veteran with adjustment disorder with depressed mood and indicated that some of the Veteran's psychiatric symptoms, to include poor sleep, can be attributed to the Veteran's health problems. Given the possible nexus between the Veteran's psychiatric disorders and his service-connected physical disorders such as migraine headaches and/or diabetes mellitus, an opinion should be obtained as to the likelihood of such a relationship. Regarding the Veteran's claim for SMC, such matter is inextricably intertwined with the claims seeking service connection; consideration of such matter must be deferred pending resolution of the service connection claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO should secure for the record copies of the complete records of all treatment the Veteran has received for his psychiatric and respiratory disabilities from Scott and White. If an updated release form is needed to secure the records, the Veteran must assist in this matter by providing such release. If the records sought are not received in response to the RO's request, the RO should notify the Veteran of such, and remind him that ultimately it is his responsibility to ensure that the records are received. 2. The AMC/RO should consider the Veteran's service personnel records showing an MOS as a an armored communications specialist and communications chief and the Veteran's contention that he was exposed to asbestos while working in these positions in conjunction with the provisions of the VBA Manual M21-1, Part VI, pertaining to asbestos exposure, and a determination should be made as to whether it is as likely as not such service caused asbestos exposure. If further investigation is necessary to make such a determination the AMC/RO should prepare a letter asking the United States Army and Joint Services Records Research Center (JSRRC) to provide any information that might corroborate the Veteran's claimed in- service asbestos exposure military communications equipment prior to 1963 and armored vehicles in which the communications equipment was installed. Copies of the Veteran's available service treatment records and service personnel records, and his contentions regarding exposure to asbestos should be forwarded to the JSRRC. If indicated by the JSRRC, the AMC/RO should contact the United States Navy and/or the National Archives and request copies of the Veteran's unit records to help answer these questions. 3. After completion of the foregoing, the AMC/RO should arrange for the Veteran to be afforded a VA examination to determine the etiology of his current lung disorders to include asbestosis. The AMC/RO must specify for the examiner whether the evidence reflects that the Veteran was exposed to asbestos in service and any potential asbestos exposure after service. The examination report should reflect review of pertinent material in the claims file. The examiner should opine whether it is at least as likely as not that the Veteran's lung disorders to include asbestosis are related to his alleged in-service asbestos exposure or any post-service exposure. The examiner should also opine whether it is at least as likely as not that the Veteran's lung disorders are related to his presumed herbicide exposure as noted in the June 2007, March 2008, and August 2008 medical opinions. The examination report should include the complete rationale for all opinions expressed. All necessary special studies or tests should be accomplished. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. 4. Schedule the Veteran for an appropriate VA psychiatric examination to determine the current nature and likely etiology of any diagnosed acquired psychiatric disorder, to include whether an acquired psychiatric disorder is caused or aggravated by the Veteran's service-connected disorders, to include migraine headaches and/or diabetes mellitus. The claims folder must be forwarded to the examiner for review in connection with the examination. The examiner's attention is specifically directed to the June 2007 VA screening showing an impression of depression and a June 2007 VA psychiatric examination wherein the examiner diagnosed the Veteran with adjustment disorder with depressed mood and indicated that some of the Veteran's psychiatric symptoms, to include poor sleep, can be attributed to the Veteran's health problems. Based on the examination and review of the record, the examiner should address the following: whether the Veteran has a current acquired psychiatric disorder and, if so, whether the Veteran's current acquired psychiatric disorder is at least as likely as not incurred in active service or caused or aggravated (i.e., made permanently worse) by either his service-connected migraine headaches, diabetes mellitus and/or any other service-connected disorder. All opinions should be accompanied by a clear rationale. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 5. The RO should then re-adjudicate the remaining claims (the claim seeking SMC in light of the determinations on the other matters being remanded). If any remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ APRIL MADDOX Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs