Citation Nr: 1300355 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 03-08 659A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a chronic right knee disorder. 2. Entitlement to service connection for a chronic right elbow disorder. 3. Entitlement to service connection for a chronic cough, to include as secondary to asbestos exposure. 4. Entitlement to an initial rating for an HIV infection in excess of 30 percent for the period of August 1, 1998, through May 14, 2003; in excess of 60 percent from May 15, 2003, through January 8, 2012; and in excess of 30 percent beginning January 9, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1978 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions, including (1) a February 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, in which the RO granted service connection for an HIV infection, assigning an initial rating of 30 percent; and (2) a January 2002 rating decision of the Los Angeles, California RO, in which the RO denied service connection for iliotibial syndrome of the right knee, a right elbow disability, and a chronic cough. The Board observes that the Veteran originally claimed service connection for a right knee disability, a right elbow disability, and a chronic cough in September 1998, and that a rating decision was issued in February 1999 denying service connection on those matters. Thereafter, the Veteran initiated an appeal. The procedural history is murky, such that it is not entirely clear whether the Veteran timely perfected an appeal as to the right knee, right elbow, and chronic cough claims. In any event, the RO subsequently issued a deferred rating decision in February 2001 indicating that the claims should be reconsidered under the then-recently enacted Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L. No. 106-475, § 7, 114 Stat. 2096, § 7 (2000) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West 2002)). This occurred in January 2002. It is evident that the RO's reconsideration was performed under section 7 of the VCAA, and thus, with the January 2002 readjudication, procedurally it is "as if the denial . . . had not been made." Id. Therefore, the Board finds that the three claims on appeal seeking service connection have been pending since the Veteran's original September 1998 claim. The three claims for service connection were before the Board in June 2006, at which time they were remanded for further development, including new examinations. (An additional claim of service connection for a heart murmur was also remanded at that time but has since been granted in a May 2012 rating decision, characterizing the disability as left ventricular hypertrophy and tricuspid regurgitation. The initial rating assignment has not yet been appealed and this issue is not presently in appellate status.) The issue of entitlement to an increased initial rating for HIV was perfected in September 1999, but was not addressed by the Board at the time of the June 2006 decision. Although two rating decisions have amended the Veteran's rating for HIV (April 2004, increasing the rating to 60 percent as of May 15, 2003, and January 2012, reducing the rating to 30 percent, effective January 9, 2012), no supplemental statement of the case has ever been issued addressing Veteran's appeal, despite the fact that there has been a perfected appeal for over 13 years. It is unclear whether the Veteran realizes that the issue has remained on appeal. The Board also observes that at various times, the issue of entitlement to an increased rating for scars associated with basal cell carcinoma has been deemed to be on appeal. Despite the fact that the Veteran submitted a notice of disagreement with his initial rating, and that a statement of the case was issued, the Veteran clearly indicated in his September 1999 VA Form 9 Substantive Appeal that he was seeking service connection for basal cell carcinoma, and that he was not seeking an increased rating for his scars. That issue is not presently on appeal before the Board. The Veteran's Virtual VA file has been considered for purposes of this adjudication. The issues of entitlement to service connection for a chronic cough, to include as secondary to asbestos exposure, and entitlement to an increased initial (staged) rating for an HIV infection, 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. The Veteran has a current right knee disability that is shown to be related to an in-service knee injury. 2. The Veteran has a current right elbow disability that is shown to be related to an in-service elbow injury. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a chronic right knee disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for an award of service connection for a chronic right elbow disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). As the Board is granting the claims of service connection for right knee and right elbow disorders, the claims are substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (providing that the Secretary is not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The second and third requirements may be satisfied with evidence of a chronic disease shown during service or a continuity of symptomatology. See 38 C.F.R. § 3.303(b); see Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. 38 C.F.R. § 3.159(a). The Board must then determine if the evidence is credible, or worthy of belief. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511- 512 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Right Knee The Board finds that service connection for the Veteran's right knee disability is warranted, as there is competent, credible evidence of an in-service knee injury, a current disability, and a nexus between the two. The Veteran has provided multiple statements that he developed recurrent right knee pain in service; he is competent to describe his knee pain. There are no treatment records for in-service knee pain in the Veteran's file, but there is an April 1998 reference in the service treatment records (STRs) indicating that the Veteran was diagnosed with iliotibial ban friction syndrome of the right knee in 1985. Records from the period immediately following service are consistent with a chronic disability that began during service. In October 1998, the Veteran was diagnosed with a right knee strain. Records throughout 1999 show treatment for chronic bilateral knee pain. In fact, during treatment in June 1999, the Veteran specifically associated his right knee pain with a 1984 diagnosis of iliotibial band syndrome. The fact that the Veteran 1984 timeframe that the Veteran provided for the onset of his iliotibial band syndrome is slightly different from the record indicating an onset in 1985 is not significant, considering the nearly fifteen years that had intervened between the original diagnosis and his June 1999 statement. Overall, the Board finds that the treatment records support the Veteran's credibility with regard to his contentions concerning the onset of his knee disability. The Veteran was provided a VA examination in November 2007 to address his right knee claim. He informed the examiner that he had developed knee pain in the 1980s, and that he had been diagnosed with "IT band syndrome." He indicated that as of the time of the examination, he had problems with his right knee once or twice per year. Following a physical examination, the examiner noted findings consistent with ileal tibial band syndrome and a strain of the right knee, without evidence of arthritis. The examiner opined that these diagnoses were related to in-service trauma. The Veteran was provided another VA knee examination in April 2012. The examiner diagnosed iliotibial band syndrome and patellofemoral pain syndrome of the right knee, and provided an opinion that the right knee condition was not caused by his military service because "there is no documentation of right knee complaints in the medical service records provided for review today," and that "without actual documentation of such complaints in his service records no objective association can be made with today's diagnosis." The examiner further indicated that trauma to the knee during service would have likely resulted in an abnormality that could be radiologically detected, and that in this case X-rays were negative. The April 2012 report is not probative as to whether the Veteran's current knee disabilities are related to service, as the examiner was factually incorrect in stating that the Veteran did not report a history of knee pain while in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). It is particularly relevant in this regard that one of the current disabilities found on examination was iliotibial band syndrome, the same diagnosis identified in the Veteran's April 1998 service treatment records. Further, even were the disability not noted in service, a record of in-service treatment or of an in-service injury is not necessary to associate a current disability with the Veteran's service, and the lack of contemporaneous records of an in-service diagnosis would not be a sufficient basis upon which to deny service connection. Thus, the record establishes that the Veteran has a current right knee disability, and a documented history of in-service right knee symptomatology. The November 2007 examiner provided a competent nexus associating the current disability with his in-service injury. Providing the Veteran with the benefit of the doubt, the evidence is at least in equipoise; service connection for a cervical spine disability is warranted. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55-57. In making the above determination, the Board acknowledges that the April 1999 record includes a reported history of bilateral knee arthritis; an arthritis diagnosis is inconsistent with X-rays taken in October 1998, November 2007, and April 2012, showing normal results. Nevertheless, as the Board is granting direct service connection for a right knee disability, there is no need to address whether the Veteran warrants service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309. Right Elbow The Board also finds that service connection for the Veteran's right elbow disability is warranted, as there is competent, credible evidence meeting all three requirements for service connection: an in-service elbow injury, a current disability, and a nexus between the service injury and the current disability. In March 1991, while the Veteran was on active duty, the Veteran was treated for right elbow pain and a loss of range of motion. He was diagnosed at that time with elbow arthritis, but without any X-ray findings to support that diagnosis. In June 1997, two years prior to the Veteran's separation, he reported a history of right elbow treatment in 1991. Another report, undated but appearing to be from 1997 based on its location within the record and its contents, indicates that the Veteran experienced right elbow effusion in February 1991. The Veteran continued to report elbow symptomatology in the period of time following his release from active duty. Post-service records, including from January and March 1999, show treatment for chronic right elbow pain. The November 2007 examiner also addressed the Veteran's right elbow disability claim. The examiner noted the Veteran's March 1991 treatment for right elbow pain, and acknowledged the Veteran's reported history of separate right elbow injury that he claims resulted from an incident documented in his STRs, when a fellow serviceman fell off of a plane wing onto the Veteran's head and neck as he was walking by, resulting in the Veteran's hospitalization. Physical examination showed tenderness in the lateral epicondyle of the right elbow, and the examiner diagnosed him with chronic lateral epicondylitis. The examiner opined that the right elbow condition resulted from in-service trauma, and should be considered service-connected. The Veteran's right elbow disability was again examined in April 2012. The examiner provided a negative etiology opinion, using identical reasons and bases that had been provided with respect to the knee disability, including the "fact" that the Veteran was not treated for elbow pain in service. The Board has already discussed the fact that the Veteran received elbow treatment in March 1991. As noted above, those reasons and bases are inadequate, and the opinion is therefore not probative of the issue. Based on the foregoing, the Board finds that the Veteran has a current right elbow disability, a history of in-service treatment for right elbow pain, and a competent nexus associating the two. Affording the benefit of the doubt, the evidence is at least in equipoise and service connection for a right elbow disability is therefore warranted. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55-57. ORDER Service connection for a chronic right knee disability is granted, subject to the statutes and regulations governing the payment of monetary benefits. Service connection for a chronic right elbow disability is granted, subject to the statutes and regulations governing the payment of monetary benefits. REMAND The issue of entitlement to service connection for a chronic cough must be remanded for a new examination. The Veteran was provided a VA examination in November 2007, following a Board remand, to determine the nature and etiology of any disability related to a chronic cough. The resulting examination report, however, is unfortunately inadequate to determine whether the Veteran has a current disability related to a chronic cough that warrants service connection. Thus, further examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). First, while the Veteran was provided that examination, the examiner did not address the history of asbestos exposure. While at the time of the examination, such discussion may have appeared unnecessary, as the Veteran had a normal chest X-ray and no current diagnosis related to his chronic cough, with subsequent developments the question has become more relevant. In February 2011, the Veteran was provided a CT scan of the chest, which showed potential lung scarring. The interpreting physician noted that there were linear areas of opacity within the lower lobe of the lung that could represent atelectasis or scarring; the examiner could not rule out early consolidative process or infection. The Board acknowledges that the Veteran was provided an April 2012 examination, which resulted in an opinion that the Veteran's current cough condition was not related to asbestos exposure, as April 2012 chest X-rays revealed no findings of diffuse interstitial lung disease which was consistent with asbestos exposure. The examiner acknowledged that the chronic cough could be caused by other pathology or illness, but opined that asbestos was not the cause. The April 2012 opinion is also insufficient for determining whether the Veteran has a disability manifested by a chronic cough that is etiologically related to service. The opinion solely focused on asbestos exposure, and failed to provide any rationale as to what other pathology, including in-service pathology, might be responsible for a chronic cough disability. Further, the previous evidence of potential scarring was obtained through a CT scan, rather than an X-ray. It is notable that at the same time the February 2011 CT scan showed potential scarring, the February 2011 X-rays of the chest were negative for evidence of disease. The April 2012 examiner did not conduct a CT scan of the chest. To find that there is no current lung scarring, a CT scan (i.e., the same diagnostic test that previously showed potential scarring), is necessary. Thus, it is not clear whether there is lung scarring, whether that any existing scarring is related to in-service asbestos exposure, or whether such scarring, if present, is productive of a chronic cough or is indicative of any other asbestos-related disability. On remand, the examiner should address whether the scarring of the lungs represents a current disability, including whether that disability produces a chronic cough, and/or is related to in-service asbestos exposure. Notably, the physician who interpreted the February 2011 CT scan indicated that there was a thoracic spine MRI performed on February 3, 2011, that showed paraspinal soft tissue thickening in the lower thoracic spine; although it appears that there are MRI images on a compact disc in the file, there are no available reports interpreting the MRI. If a report was completed concerning the MRI results, it should be obtained and associated with the claims file. If a report was not completed, the MRI images should be provided to an appropriate specialist for interpretation and report prior to obtaining an opinion on whether the Veteran's possible lung scarring represents current disability. The examiner should also determine whether the Veteran's asthma (noted on his January 2011 past medical history, for which he was taking albuterol) is (a) productive of a chronic cough, and (b) etiologically related to his service or any of his service-connected disabilities, to include whether the asthma is aggravated by any service-connected disabilities. The Board points out that while this disability was not listed in the Veteran's medical history at the time of his September 1998 claim, the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board recognizes that the Veteran was provided an examination in April 2012 at which it was observed that he did not have asthma. These findings disregard the January 2011 notation in the claims file of a history of asthma, as well as a prescription for albuterol; on remand, the January 2011 record, and the albuterol prescription, should be addressed. Finally, the November 2007 examiner noted that the Veteran had been given a provisional diagnosis of chronic symptomatic laryngeal irritation by an ear, nose, and throat physician. The examiner opined that the laryngeal condition was etiologically related to the Veteran's human immunodeficiency virus (HIV). The Veteran is currently service-connected for a "chronic throat disorder to include a history of oral thrush (oral candidiasis) associated with HIV infection." It is not clear from the record whether the chronic throat disorder for which the Veteran is already service-connected is the same condition as the chronic laryngeal irritation addressed by the November 2007 examiner; upon remand, this question must be addressed by the examiner. Concerning the Veteran's initial rating for an HIV infection, the matter must be remanded for a new examination, and to provide the Veteran with the opportunity to fully participate in the appeal. Although the Veteran has been provided with examinations addressing HIV symptomatology over the course of the appeal (March 2011; January 2008; February 2004), no examination since February 2004 has been specifically for the purpose of evaluating HIV. The Veteran has continued to receive treatment for HIV, and most recently, in May 2012, his symptomatology included constitutional symptoms such as night sweats and diarrhea. Further, the March 2011 examiner noted that the Veteran's basal cell carcinomas, related to his HIV infection, required surgeries every ten months; neither the extent of his basal cell carcinoma, nor whether the Veteran has continued to have surgery for basal cell carcinoma, is evident from the record. A new examination is warranted. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding that if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). The Board also notes that as a matter of procedure, the Veteran should be provided an opportunity to fully participate in the appeal, prior to the adjudication of the appropriate ratings for his HIV infection. No supplemental statement of the case has been issued at any time since the Veteran's September 1999 VA Form 9 Substantive Appeal, despite the significant accumulation of treatment records for the disease. In addition to providing the Veteran with an opportunity to participate in the appellate process, consideration of the treatment records at the level of the agency of original jurisdiction, including the issuance of a supplemental statement of the case, is appropriate prior to the Board's consideration of the merits of the appeal. 38 C.F.R. § 19.31(b)(1) (2012). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In this regard, any records from the Veteran's asbestos-related monitoring should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including any ongoing VA treatment records. Such records should include, but are not limited to, any records associated with the Veteran's asbestos-related monitoring, whether those records are with the Department of Defense, VA, or a private medical provider. If obtaining records requires a release by the Veteran, the RO should request that the Veteran sign and return an appropriate form permitting his medical providers to release the records to VA. All efforts to obtain relevant records should be documented in the claims file. If any records are unobtainable, such should be indicated, including an explanation as to why the records cannot be obtained. 2. Obtain the report from the Veteran's February 3, 2011, thoracic MRI, and associate that report with the claims file. If an interpreting report has not yet been created in relation to the MRI, provide the MRI results to an appropriate specialist for interpretation and report, and associate any resulting report with the claims file. 3. Schedule the Veteran for a VA examination with an individual with the appropriate expertise to determine the nature and etiology of any chronic cough disability. The examiner should review the Veteran's claims file, including this remand, and should indicate in his or her report (or an addendum) that such a review was accomplished. The examiner should be informed that the Veteran was provided with a chest X-ray, thoracic MRI, and a CT scan of the chest, in February 2011; in April 2012 he was provided with a chest X-ray, but apparently was not provided another CT scan. If additional diagnostic testing is required as part of the examination, such should be completed. Thereafter, the examiner should obtain a complete history from the Veteran concerning his chronic cough, as well as any other throat-related disability. The examiner should be informed that the Veteran has documented in-service asbestos exposure. The examiner should determine what, if any, chronic-cough-related disabilities are present. The examiner should also determine whether any other chronic-cough-related disabilities have been present at any time since September 1998. The examiner should determine whether the Veteran has scarring of the lungs. For there to be a finding that the Veteran does not have lung scarring, X-ray evidence, standing alone, is insufficient. There must be a new CT scan to address the findings shown in the February 2011 CT scan. The examiner should then opine as to following: a. Whether it is at least as likely as not (a 50 percent probability or more) that any current chronic cough disability (i.e., any chronic cough disability diagnosed since September 1998) had its onset in service, or is otherwise the result of a disease or injury in service. The examiner's opinion with regard to this question should include discussion of the nature and etiology of the Veteran's asthma. b. If the Veteran has scarring of the lungs, (1) whether it is at least as likely as not (a 50 percent probability or more) that lung scarring is etiologically related to any in-service asbestos exposure, (2) whether it is at least as likely as not (a 50 percent probability or more) that lung scarring is a manifestation of a chronic cough disability, and (3) whether any scarring of the lungs is indicative of any other asbestos-related disability. c. Whether it is at least as likely as not (a 50 percent probability or more) that any current chronic cough disability (any chronic cough disability diagnosed since September 1998) developed secondary to any service-connected disability. d. Whether it is at least as likely as not (a 50 percent probability or more) that any current chronic cough disability (any chronic cough disability diagnosed since September 1998) is aggravated (made permanently worse by) any service-connected disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. e. Whether the Veteran's chronic symptomatic laryngeal irritation, as noted in the November 2007 examination (see, e.g., treatment records from May 1999), is a different disability, with a separate and distinct symptom set from the Veteran's service-connected "chronic throat disorder to include a history of oral thrush (oral candidiasis) associated with HIV infection." Service connection is in effect for: HIV infection, recurrent herpetic infection, major depressive disorder, left ventricular hypertrophy and tricuspid regurgitation, cervical strain with discogenic disease (C5-C6), left knee sprain, anal condyloma, residual scars (basal cell carcinoma) status-post excision, tinnitus, intermittent sinusitis of the right maxillary, chronic throat disorder to include a history of oral thrush/oral candidiasis, paralysis of the 7th cranial nerve (Bell's Palsy), onychomycosis, erectile dysfunction, a right knee disability, and a right elbow disability. The examiner should be informed that the Veteran is competent to describe the frequency and severity of his symptoms. If the Veteran's reports are discounted, the examiner should provide reasons for doing so. A rationale for all opinions should be provided. If an opinion cannot be provided without resort to speculation, the examiner should provide reasons why this so; and should state whether there is additional evidence that would permit an opinion to be rendered. 4. Schedule the Veteran for an examination to determine the current severity of his HIV infection, including whether the Veteran suffers from any other disabilities etiologically associated with his HIV. The examiner is to be provided access to the claims file, a copy of this remand, and Virtual VA. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner is also to be provided with the rating criteria for HIV-Related Illness (Diagnostic Code 6351), and is asked to address the Veteran's HIV symptomatology as it relates to the relevant criteria. All testing deemed necessary must be conducted and results reported in detail. A complete rationale for any opinions expressed must be provided. 5. The AOJ should review the examination reports to insure that they contain all the information and opinions sought in this remand. 6. If the benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case. The case should be returned to the Board, if otherwise in order. 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). 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. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs