Citation Nr: 1237301 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 10-08 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for anxiety disorder to include as secondary to the service-connected nerve damage to the right lower extremity. 2. Entitlement to an increased compensable disability rating for allergic rhinitis. 3. Entitlement to an initial disability rating in excess of 10 percent from April 15, 2008 and in excess of 40 percent from June 19, 2009 for the service-connected nerve damage of the right lower extremity. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions dated in October 2008 and July 2011 of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a hearing held at the RO before the undersigned Veterans Law Judge in July 2012. A transcript of the hearing is associated with the claims folder. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to service connection for a psychiatric disorder and entitlement to an increased rating for allergic rhinitis 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. FINDINGS OF FACT 1. From April 15, 2008 to June 18, 2009, the service-connected nerve damage of the right lower extremity was manifested by complaints of numbness in the right leg and foot and objective findings of slight weakness in dorsiflexion in the right foot and ankle and sensory deficits to the right calf and right foot which more closely approximate mild impairment. 2. From June 19, 2009, the service-connected nerve damage of the right lower extremity is manifested by complaints of numbness, aching, and spasms in the right lower leg and objective findings of weakness on dorsiflexion of the right ankle and foot, mild foot drop, and decreased sensation of the right foot. 3. For the entire appeal period, the service-connected nerve damage of the right lower extremity has not been manifested by an exceptional or unusual disability picture. CONCLUSIONS OF LAW 1. From April 15, 2008 to June 18, 2009, the criteria for an initial disability evaluation in excess of 10 percent for the service-connected nerve damage of the right lower extremity have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8521 (2012). 2. From June 19, 2009, the criteria for a disability evaluation in excess of 40 percent for the service-connected nerve damage of the right lower extremity have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8521 (2012). 3. An extraschedular disability rating for the service-connected nerve damage of the right lower extremity is not warranted. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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 and of the relative duties of the VA and the claimant for procuring that evidence. 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; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided VCAA notice letters to the Veteran in June 2008 and July 2008, prior to the initial adjudication of the claim. The letters notified the Veteran of what information and evidence must be submitted to substantiate claims for compensation pursuant to 38 U.S.C.A. § 1151 and increased ratings, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of his claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in June 2008 and July 2008. The Veteran's claim for a higher evaluation is a downstream issue, which was initiated by the notice of disagreement. The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements..." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Therefore, there is no duty to provide additional notice in this case. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. VA treatment records dated from 1996 to July 2011 are associated with the claims folder. There is no identified relevant evidence that needs to be obtained in this regard. The Veteran underwent a VA examination in 2008 and 2011 to obtain medical evidence as to the nature and severity of the service-connected nerve damage of the right lower extremity. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis of the Claim for an Increased Rating The Veteran contends that he is entitled to higher disability ratings for the service-connected nerve dame to the right lower extremity. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 8521 (paralysis of the external popliteal nerve (common peroneal nerve)), a 40 percent evaluation is assigned when there is evidence of complete paralysis with foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. A 30 percent rating is assigned for severe incomplete paralysis. A 20 percent evaluation is assigned for moderate incomplete paralysis and a 10 percent rating is assigned for mild incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2012). The term "incomplete paralysis," with respect to peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a (2012). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of an initial disability evaluation in excess of 10 percent for the service-connected nerve damage of the right lower extremity from April 15, 2008 to June 18, 2009. For the time period in question, the evidence shows no more than mild incomplete impairment. The June 2000 VA hospital records show that the Veteran underwent a right L4-L5 microlumbar diskectomy. There was an accidental neurotomy of the nerve root region during the surgery which was repaired with a gel foam patch. It was noted that the patch was on for three days and a nylon suture closed the wound. The Veteran reported that his right leg felt slightly numb. Neuro-surgical consult records indicate that there was slight weakness on dorsiflexion. It was noted that on postoperative day 4, the Veteran ambulated on his own. He was discharged to home. VA treatment records show that in February 2008, the Veteran was evaluated by primary care. The Veteran reported having chronic back pain. He did not report any symptoms pertinent to the nerve damage. An August 2008 VA neurological examination report indicates that the Veteran reported having low back pain and lumbosacral neuritis with surgery in 1999 and 2000. Physical examination revealed that the Veteran walked with a limp favoring his right side. He wore protective foot gear. He was unable to heel and toe walk. Neurological examination revealed that foot dorsiflexion, plantar flexion, foot eversion, foot inversion, and toe flexion were 5/5 bilaterally. Sensory examination of the right lower extremity revealed deficits on light touch and pinprick on the lateral right calf and great toe. Vibratory sensation was decreased in the right great toe. Deep tendon reflexes were absent throughout. The first evidence of right foot drop is upon VA treatment on June 22, 2009. A June 2009 VA prosthetic consult record indicates that the Veteran was seen in the clinic for a right ankle and foot orthosis evaluation. Muscle strength examination was 5/5 in the lower extremities bilaterally. Dorsiflexion of the right foot was 4/5. It was noted that the Veteran presents with right foot drop secondary to the back surgery in 2000. A right centri dynamic ankle and foot orthosis was ordered for the Veteran. A June 2011 VA examination report indicates that the examiner noted that the Veteran had surgery, a microdiscectomy in 1999 and a second surgery in 2000. The Veteran reported having persistent numbness in the right leg and weakness with dorsiflexion in the right foot since the surgery. It was noted that the weakness in the ankles seemed to progress slightly over the past couple of years. The examiner noted that the Veteran was issued an ankle and foot orthosis in July 20098 due to stumbling and dragging of the foot. The Veteran reported having some tingling and aching in the lower leg and he stumbled without the ankle and foot orthosis on. The Veteran also reported having some intermittent anterior and lateral calf spasms and he had numbness over the top of the foot and big toe. It was noted that the Veteran described no other limitations with activities of daily living or working other than some mild increased weakness. He had no change in symptoms since the surgery in 2000. Examination revealed that both calves were equal at 18 inches and there was no atrophy. There was decreased sensation to light touch and sharp dull in the L4-L5 dermatome on the right foot. Dorsiflexion of the right ankle and right great toe was 3/5; it was 5/5 on the left. Right plantar flexors were 4/5, right ankle everters were 0/5, and right ankle inverters were 4/5. On the left, all motor function as 5/5. The Veteran had a slow antalgic gait. He was able to toe up several times but was unable to heel walk at all secondary to the weakness in the foot and ankle. The examiner noted that he did not find any records of an electromyography or nerve conduction studies for the past ten years in the Veteran's records. The examiner noted that neurosurgical records showed that the Veteran had weakness with dorsiflexion of the foot and great toe. The examiner further noted that it was odd that the Veteran had absolutely no calf atrophy associated with the weakness and he had no abnormal show wear on either shoe. The examiner concluded that it was as likely as not that the Veteran had mild foot drop which improved with the ankle foot orthosis and which was related to the previous nerve injury to the back. The medical evidence of record shows that prior to June 19, 2009, the nerve damage of the right leg was manifested by slight weakness in dorsiflexion in the right foot and ankle and sensory deficits to the right calf and right foot. These findings more closely approximate mild impairment and warrant a 10 percent rating and no higher under Diagnostic Code 8521. The medical evidence further demonstrates that mild foot drop was detected on June 22, 2009. Dorsiflexion of the right foot was 4/5 at that time. The June 2011 VA examination report indicates that the Veteran continued to have mild foot drop on the right and decreased sensation to light touch and sharp dull in the L4-L5 dermatome on the right foot. Dorsiflexion of the right ankle and right great toe was 3/5. Right plantar flexors were 4/5, right ankle everters were 0/5, and right ankle inverters were 4/5. The Veteran had a slow antalgic gait. He was unable to heel walk at all secondary to the weakness in the foot and ankle. The 40 percent rating is assigned to the nerve damage of the right leg from June 19, 2009 under Diagnostic Code 8521. There is no evidence of right foot drop due to the nerve damage prior to this date. Thus, a rating in excess of 40 percent is not warranted prior to June 19, 2009. The Board notes that the 40 percent rating under Diagnostic Code 8521 is the highest schedular rating under this code. The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, it must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the Veteran's symptoms due to the nerve damage of the right leg are contemplated by the rating schedule, and the assigned schedular evaluations, therefore, are adequate. The rating criteria reasonably describe his disability level and symptomatology. Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extraschedular consideration is not warranted. In summary, the Board finds that the assignment of an initial disability evaluation in excess of 10 percent for the service-connected nerve damage to the right leg prior to June 19, 2009 and the assignment of a disability evaluation in excess of 40 percent for the service-connected nerve damage of the right leg from June 19, 2009 are not warranted. The evidence preponderates against the claims, and the appeal is denied. ORDER Entitlement to an initial disability evaluation in excess of 10 percent prior to June 19, 2009 and in excess of 40 percent from June 19, 2009 for the service-connected nerve damage of the right leg is denied. REMAND Regarding the claim for a disability evaluation in excess of zero percent for allergic rhinitis, the Board finds that another VA examination is necessary to determine the current severity of the service-connected allergic rhinitis. The Veteran was afforded a VA examination of the sinuses in August 2008. In an October 2008 statement, the Veteran stated that his allergic rhinitis has gotten worse. Because of the evidence of possible worsening since the last examination, a new examination is needed to determine the severity of the service-connected allergic rhinitis. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The RO/AMC must make attempts to obtain any records of treatment of the service-connected allergic rhinitis since July 2011 from the VA healthcare system. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). Regarding the claim for service connection for a psychiatric disorder as due to the service-connected nerve damage to the right leg, at the hearing before the Board in July 2012, the Veteran indicated that his treating psychiatrist at VA related his depression to the pain from the nerve damage to the right leg. He stated that he was seeing his psychiatrist in August. The RO/AMC must make attempts to obtain any records of treatment of the claimed psychiatric disorder to include depression and anxiety disorder since July 2011 from the VA healthcare system. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). The RO/AMC should also inform the Veteran that he may submit any pertinent medical evidence or treatment records in support of his claims including medical statements from his treating psychiatrist. Then the RO/AMC should provide the Veteran's claim folder to the examiner who conducted the July 2011 VA psychiatric examination or a suitable replacement and the examiner should review the claims folder including all treatment records pertinent to the claimed psychiatric disorder and prepare an addendum opinion that addresses whether there is any change to the July 2011 VA examination and March 2012 VA examination addendum findings in light of any newly considered evidence. The examiner should prepare an addendum to the VA medical opinion that addresses whether it is at least as likely as not (50 percent probability or more) that the Veteran's current psychiatric disorder is proximately due to or aggravated by the service-connected nerve damage to the right leg or whether any current psychiatric disorder had its clinical onset during the Veteran's period of service. The RO/AMC also must contact the Veteran in order to have him provide sufficient information, and if necessary authorization, to enable the RO to obtain any pertinent non-VA records showing treatment of the claimed psychiatric disorder and the allergic rhinitis. The RO/AMC should make an attempt to obtain any treatment records identified by the Veteran that are not currently associated with the claims file. The Veteran also should be informed that he may submit evidence to support his claims including any evidence of in-service treatment for his claimed disabilities. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. The RO/AMC must take appropriate steps to contact the Veteran in order to have him identify all sources of non-VA medical treatment for the claimed psychiatric disorder and allergic rhinitis. Legible copies of all outstanding clinical records should be associated with the Veteran's claims file. The letter should invite the Veteran to submit any pertinent medical evidence or treatment records in support of his claims including any evidence of treatment for the claimed conditions beginning in service or shortly thereafter and/or any medical statements from his treating physicians or psychiatrist. 2. The RO/AMC must take all indicated action to obtain copies of all VA clinical records showing treatment of the claimed psychiatric disorder and allergic rhinitis from the VA healthcare system since July 2011. 3. The RO/AMC, after waiting an appropriate time period for the Veteran to respond, must schedule the Veteran for a VA examination by a clinician with appropriate expertise and who has not examined the Veteran previously. The purpose of the examination is to determine the current nature and severity of the Veteran's service-connected allergic rhinitis. The following considerations will govern the examination: (a) The claims folder, including all medical records, and a copy of this remand, will be reviewed by the examiner. The examiner must acknowledge receipt and review of the claims folder, the medical records obtained, and a copy of this remand. (b) If deemed appropriate by the examiner, the Veteran must be scheduled for further medical examinations. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. (c) The examiner must take a detailed history from the Veteran as to the nature and severity of his service-connected allergic rhinitis. If there is a medical or clinical basis for corroborating or discounting credibility or reliability of the medical history provided by the Veteran, the examiner must so state. A detailed rationale must be provided for any such finding. (d) After physical examination, the examiner should indicate if there is evidence of polyps and/or partial or complete obstruction of the nasal passages on each side. The examiner should indicate if any obstruction found is more or less than 50 percent. (e) The examiner must indicate the effect of the Veteran's service-connected allergic rhinitis on his occupational and social functioning and his ordinary activities of daily life. (f) A rationale must be provided for all findings and conclusions reached. The examiner should identify and explain the medical basis for the opinion, identify the pertinent evidence of record, and include any applicable medical treatises referenced. The examiner is advised that the Veteran is competent to report observable symptoms and that his reports must be considered in formulating the requested opinions. THE EXAMINER IS ADVISED THAT THE COURTS HAVE IMPOSED A REQUIREMENT ON THE BOARD TO EVALUATE ANY MEDICAL OPINIONS BY EXAMINATIONS OF MULTIPLE FACTORS, INCLUDING BUT NOT LIMITED TO: WHETHER THE EXAMINER CONDUCTED A PERSONAL INTERVIEW OF THE VETERAN; WHETHER CLINICAL TESTING WAS CONDUCTED AND THE RESULTS; WHETHER A COMPREHENSIVE REVIEW OF THE CLAIMS FOLDER AND OTHER MEDICAL AND FACTUAL EVIDENCE WAS CONSIDERED, INCLUDING OTHER MEDICAL OPINIONS; THE CONCLUSIONS REACHED AND WHETHER THEY ARE BASED ON THE STATE OF MEDICAL KNOWLEDGE. THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 4. Then the RO/AMC must provide the Veteran's claim folder to the examiner who conducted the July 2011 VA psychiatric examination or a suitable replacement. The following considerations will govern the examination: (a) The claims folder, including all medical records, and a copy of this remand, will be reviewed by the examiner. The examiner must acknowledge receipt and review of the claims folder, the medical records obtained, and a copy of this remand. (b) The examiner must prepare an addendum opinion that addresses whether there is any change to the July 2011 VA examination and March 2012 VA examination addendum findings in light of any newly considered evidence. The examiner must prepare an addendum to the VA medical opinion that addresses whether it is at least as likely as not (50 percent probability or more) that the Veteran's current psychiatric disorder is proximately due to or aggravated by the service-connected nerve damage to the right leg or whether any current psychiatric disorder had its clinical onset during the Veteran's period of service. (c) A rationale must be provided for all findings and conclusions reached. The examiner must identify and explain the medical basis for the opinion, identify the pertinent evidence of record, and include any applicable medical treatises referenced. The examiner is advised that the Veteran is competent to report injuries as well as observable symptoms and that his reports must be considered in formulating the requested opinions. THE EXAMINER IS ADVISED THAT THE COURTS HAVE IMPOSED A REQUIREMENT ON THE BOARD TO EVALUATE ANY MEDICAL OPINIONS BY EXAMINATIONS OF MULTIPLE FACTORS, INCLUDING BUT NOT LIMITED TO: WHETHER THE EXAMINER CONDUCTED A PERSONAL INTERVIEW OF THE VETERAN; WHETHER CLINICAL TESTING WAS CONDUCTED AND THE RESULTS; WHETHER A COMPREHENSIVE REVIEW OF THE CLAIMS FOLDER AND OTHER MEDICAL AND FACTUAL EVIDENCE WAS CONSIDERED, INCLUDING OTHER MEDICAL OPINIONS; THE CONCLUSIONS REACHED AND WHETHER THEY ARE BASED ON THE STATE OF MEDICAL KNOWLEDGE. THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. If deemed appropriate by the examiner, the Veteran must be scheduled for further psychiatric and/or psychological examination. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. 5. After completing all indicated development, the RO/AMC must readjudicate the claims remaining on appeal. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran, and his representative and they should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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. 2011). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs