Citation Nr: 1109000 Decision Date: 03/07/11 Archive Date: 03/17/11 DOCKET NO. 06-39 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement for bilateral hearing loss, and if so, whether service connection warranted. 2. Entitlement to service connection for asbestosis. 3. Entitlement to service connection for a lower back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the above claims. In July 2009, the Board remanded the claims for further development. The appeal was returned to the Board in February 2011. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). In January 1980, the Veteran initially claimed service connection for a "back injury," asserting that he underwent surgery at a hospital in Astoria, Oregon, in 1946 after he was struck with a hammer on the lower back. In a March 1980 rating decision, the RO denied entitlement to service connection for a lower back disorder on the grounds that the Veteran's service treatment records did not show treatment for a back injury. The Veteran did not appeal, and the March 1980 rating decision became final. See 38 U.S.C.A. § 7105. However, in January 2009, the VA obtained the Veteran's clinical records from the U.S Naval Hospital in Astoria, Oregon, showing diagnosis and treatment for a pilonidal cyst at the base of the spine. Therefore, rather than determining whether new and material evidence has been submitted, the claim for service connection for lower back disorder will be reconsidered on the merits. See 38 C.F.R. § 3.156(c) (2009). The issue of entitlement to service connection for a lower back disorder 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 1. The Veteran's initial claim for entitlement to service connection for bilateral hearing loss was denied by an unappealed May 1994 rating decision. 2. The evidence received since the May 1994 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the service connection claim for bilateral hearing loss. 3. The Veteran's bilateral hearing loss was not incurred in, or caused by, his military service. 4. The Veteran's asbestosis was not manifested during active service or until many years thereafter, nor is the currently diagnosed asbestosis otherwise causally related to such service. CONCLUSIONS OF LAW 1. The May 1994 rating decision denying the Veteran's petition to reopen his claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. As evidence received since the May 1994 rating decision is new and material, the claim of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 3. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2010). 4. The criteria for entitlement to service connection for asbestosis have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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, 3.326(a) (2010). 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims to reopen finally disallowed claims, the VCAA requires notice of the evidence needed to reopen the claim, as well as the evidence necessary to establish the underlying benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this decision, the Board reopens the Veteran's claim of entitlement to service connection for bilateral hearing loss. Thus, a discussion of notice requirements under Kent is not necessary as any error would be harmless error. Furthermore, as the Board is remanding the issue of service connection for a lower back disorder, no further discussion of VA's duty to notify or assist is necessary with regard to that issue. With regard to the remaining issues of service connection for asbestosis and service connection for bilateral hearing loss, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). The RO letter sent in November 2005 that informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b), as stated above. In light of the denial of the Veteran's claims for service connection for bilateral hearing loss and a lower back disorder, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to the Veteran under the holding in Dingess. VA also has a duty to assist a claimant in obtaining evidence to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty includes assisting the Veteran in the procurement of service treatment records, other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the RO has obtained the Veteran's service treatment records, VA treatment records, and all private treatment records adequately identified by the Veteran. In July 2009, the Board remanded this appeal further development. The AMC was instructed to obtain (1) all VA treatment records, to include any available treatment records from the VA hospital in Astoria, Oregon, dated from 1946; (2) the Veteran's clinical records from the Naval Hospital in Astoria, Oregon, dated from 1946; and (3) if authorization was proved by the Veteran, his private treatment records from Miracle Ear, previously identified on his October 2005 claim. The Veteran's clinical records were obtained. The AMC also obtained the Veteran's VA treatment records from the VA Medical Center in Nashville, Tennessee. After sending a request to the VA Medical Center in Portland, Oregon, the AMC was advised that the VA treatment records sought did not exist by letter dated October 2009. The AMC also sent a letter to the Veteran in September 2009 with an attached VA Form 21-4142, Authorization and Consent to Release Information, for Miracle Ear and advised him that he must complete and return the form before VA could obtain the private treatment records sought. The Veteran did not reply. As the Veteran did not provide VA with the information necessary to locate his private treatment records, VA has no further duty to assist the Veteran in obtaining his medical records from Miracle Ear. See 38 C.F.R. § 3.159(c)(1)(i). Although VA has a duty to assist the appellant in developing evidence pertinent to a claim, the appellant also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board's July 2009 remand order also instructed the AMC to schedule the Veteran for a VA asbestosis examination and, if required due to the receipt of new evidence, an additional VA audiological examination. Accordingly, an asbestosis examination was conducted in November 2009, and an additional audiological examination was conducted in September 2010. The Veteran was also provided with a VA examination in April 2007. The Veteran's asbestosis examination was accurate, descriptive, and based on the complete medical record, including the Veteran's lay assertions. The Veteran's September 2010 audiological examination provided the April 2007 examiner with an opportunity to review her opinion based on new evidence that had been associated with the claims folder. The examiner noted that the claims folder was not available at the time of the examination, but that it was received and reviewed prior to the issuance of the opinion requested. Supplemental opinions were issued in October and November 2010 in order to provide clarification. As such, this examination was also accurate, descriptive, and based on the complete medical record, including the Veteran's lay assertions. Therefore, VA has fulfilled any duty to provide a thorough and contemporaneous medical examination. Moreover, the Board is satisfied that the RO has substantially complied with the Board's July 2009 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The AMC complied with the requirements of 38 C.F.R. § 3.159(c)(2) in the attempts to obtain the Veteran's private treatment records and any available VA treatment records from Astoria, Oregon, dated from 1946. All other records requested have been obtained, and the Veteran was afforded a VA audiological examination and a VA asbestosis examination. The duty to assist has been satisfied as there is no reasonable possibility that any further assistance to the Veteran by VA would serve any useful purpose. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); Canlas v. Nicholson, 21 Vet. App. 312 (2007); Forcier v. Nicholson, 19 Vet. App. 414 (2006); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that there is no basis for a remand when no benefit would flow to the Veteran). Therefore, because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. New and Material Evidence A previously denied claim may be reopened by the submission of new and material evidence, that is, evidence that has not been previously submitted to agency decision makers, and evidence that, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New and material evidence cannot be cumulative or 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. Id. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In February 1994, the Veteran initially claimed service connection for hearing loss. In a May 1994 rating decision, the RO denied entitlement to service connection for bilateral hearing loss on the grounds that the Veteran did not have a current diagnosis of hearing loss and the evidence did not show hearing loss in service. The Veteran did not appeal, and the February 2004 rating decision became final. See 38 U.S.C.A. § 7105. The Veteran sought to reopen his claim in October 2005. In April 2007, a VA audiological examination was conducted. The examination report shows that the Veteran suffers from hearing loss in accordance with 38 C.F.R. § 3.385. As this evidence has not previously been submitted to agency decision makers and relates to unestablished fact necessary to substantiate the claim, the claim for bilateral hearing loss is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). III. Service Connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.306. "[I]n order to establish service connection or service-connected aggravation for a present disability the 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." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be presumed for certain chronic diseases, including organic diseases of the nervous system such as hearing loss, which are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Thompson v. Gober, 14 Vet. App. 187, 188 (2000); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Asbestosis The Veteran contends that his current respiratory condition is the result of his service board Navy ships and submarines as a ship fitter during a period known for asbestos exposure. VA has issued a circular on asbestos-related diseases, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), which 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, (1) that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; (2) that VA is to develop any evidence of asbestos exposure before, during and after service; and (3) 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). Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of the pleura and peritoneum; and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure. 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. As noted above, 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. M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. In Dyment, 13 Vet. App. at 145, the Court found that provisions 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. The evidence of record shows that the Veteran is currently diagnosed with asbestosis. In February 1992, the Veteran was admitted to the hospital with symptoms of dizziness, inability to stand, numbness and tingling in both arms, and blurred vision. His physician noted an occupational history of asbestos exposure and discussed a chest x-ray that showed bilateral extensive calcifications of the pleura and granulomas throughout the lungs. A CT scan showed extensive pleural calcifications bilaterally and calcified coin lesions throughout the lung. His pulmonary functions studies showed mild obstructive disease and mild to moderate small airway disease with significant improvement with use of bronchodilators. The possibility of undergoing a pleural biopsy to rule out asbestosis was discussed. In June 1993, the state of West Virginia awarded workers compensation benefits to the Veteran for occupational pneumoconiosis. A chest x-ray from March 2003 reports a clinical history of asbestosis. The impression provided is calcified pleural plaque with previous asbestos exposure and previous granulomatous disease. Treatment notes from March 2003, June 2003, March 2004, February 2005, and October 2005 show an assessment of asbestosis or history of asbestosis. Lastly, in November 2009, a VA examiner diagnosed the Veteran with asbestosis. However, the evidence of record does not show that the Veteran's currently diagnosed asbestosis is related to his active military service. The November 2009 VA examiner noted the Veteran's extensive history of occupational asbestos exposure. This exposure is documented in the record by the aforementioned grant of workers compensation benefits and by the history of occupational asbestosis exposure that the Veteran reported to his treating physician in February 1992. At the November 2009 VA examination, the Veteran explicitly stated that he may have been exposed to asbestos in the Navy, but definitely had thirty years of occupational asbestos exposure. In consideration of the history provided by the Veteran and the based upon a review of the medical evidence in the claims folder, the VA examiner determined that it was less likely than not that the Veteran's current asbestosis is caused by his military service and that it is more likely related to his thirty years of civilian occupational exposure. There is no competent medical evidence of record relating any current respiratory disorder to the Veteran's active service, and the VA examiner's opinion was rendered in full consideration of the lay statements given by the Veteran. As such, the preponderance of the evidence is against the Veteran's claim and the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. The claim for service connection for asbestosis must be denied. B. Hearing Loss The Board first notes that it is not prejudicial for the Board to consider the issue of service connection for hearing loss on the merits because the RO reopened the claim and considered it on the merits in a June 2007 supplemental statement of the case. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). The Veteran contends that he currently suffers from bilateral hearing loss due to exposure to large caliber weapons during his period of active military service. Under VA regulations, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The evidence demonstrates a current disability of bilateral hearing loss. See id. In April 2007, the Veteran was provided with a VA audiological examination. The Veteran had auditory thresholds above 40 decibels at all relevant frequencies bilaterally. His speech recognition scores were 80 percent for the right ear and 76 percent for the left ear. The diagnosis provided is moderately severe to severe sensorineural hearing loss of the right ear and moderate to severe sensorineural hearing loss of the left ear. Additionally, as the available evidence is consistent with the Veteran's testimony, the Board finds that his statements regarding the character of service and the noise exposure experienced are credible. Therefore, noise exposure in service is conceded. However, there are no complains of hearing loss noted in the Veteran's service treatment records or at separation from service. In April 2007, the VA examiner determined that the audiological data reported at the Veteran's separation examination indicated normal hearing. The VA examiner provided the opinion that the Veteran's hearing loss was less likely as not caused by or a result of his military noise exposure because the Veteran did not seek treatment for hearing loss before 2006 and had a significant history of civilian occupational noise and chemical exposure. As such, the examiner opined that the Veteran's hearing loss was more likely caused by occupational noise and possible ototoxic chemical exposure. The examiner was asked to provide an additional opinion after additional evidence was associated with the claims folder showing that the Veteran purchased hearing aids in 2006. The examiner explained that the opinion provided was not changed, and that the negative opinion was based on (1) the first objective evidence of hearing loss in the claims folder, i.e. the April 2007 audiological examination; (2) the passage of 60 years from release from service and the earliest evidence of record showing possible hearing loss dated in 2006; (3) the Institute of Medicine study showing no scientific onset for the latent onset of hearing loss many years after military noise exposure ; and (4) the Veteran's reportedly significant occupational noise and chemical exposure following service. Therefore, it was still her opinion that the Veteran's current hearing loss is "less likely to have been caused by or related to this Veteran's now distant military service and noise exposures sustained therein." The March 2010 VA examiner is competent to render an opinion on the etiology of the Veteran's hearing loss as a licensed audiologist, and the opinion provided was based on a review of the claims folder and a complete history of the Veteran's service and hearing loss. Additionally, the examiner provided a thorough rationale for the opinion given. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the reasoned analysis in a medical opinion is where most of the probative value of the opinion comes from). Furthermore, the evidence of record does not support a finding that hearing loss manifested to a compensable degree within a year of service, or that symptoms of hearing loss have been continuous since service. The Veteran has claimed that his noise exposure in service caused hearing loss during service and ultimately led to his current hearing loss, but he did not indicate whether he continued to experience symptoms of hearing loss after service prior to seeking treatment in 2006. As such, the Veteran's claims cannot be substantiated under the provisions of 38 C.F.R. § 3.303(b). Therefore, the preponderance of the evidence is against finding that the Veteran's hearing loss was incurred in service under all applicable theories of entitlement such that the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for hearing loss must be denied. ORDER Service connection for asbestosis is denied. Service connection for bilateral hearing loss is denied. REMAND 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. In accordance with the Board's July 2009 remand order, the AMC obtained the Veteran's clinical records from the Naval Hospital in Astoria, Oregon, showing diagnosis and treatment for a pilonidal cyst at the base of the spine in June 1946. These records corroborate the Veteran's long-standing testimony regarding a back injury that he sustained in 1946 and subsequent surgery at the Naval Hospital in Astoria. In light of the above, further development is required because the medical evidence of record does not contain sufficient information to address the required legal inquiry. See 38 U.S.C.A. § 5103A (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, it is incumbent on the Board to remand this matter for a VA examination prior to adjudicating this claim. Additionally, an effort should be made to obtain any additional VA treatment records for the Veteran showing treatment for his lower back disorder, dated since December 2010. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Make arrangements to obtain a complete copy of the Veteran's treatment records pertaining to a lower back disorder from the VA Medical Center in Nashville, Tennessee, dated since December 2010. 2. Thereafter, schedule the Veteran for an appropriate VA examination of his lower back disorder, giving appropriate consideration to a possible neurological basis for the Veteran's back pain. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests, including x-rays, should be accomplished. The examiner is requested to provide a diagnosis of any lower back disorder found to be present, to include any neurological disorder. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed lower back disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Read the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 4. Finally, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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. 2010). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs