Citation Nr: 1300550 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-24 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for migraine headaches. 4. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served in the United States Army Reserve and had active duty for training from March 1983 to July 1983 followed by service in the National Guard. He later served on active duty from February 1988 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the benefits sought on appeal. The Veteran appealed that decision to the Board, and the case was referred to the Board for appellate review. A hearing was held on February 2, 2012, at the RO in Atlanta, Georgia, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (d)(1) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. A review of the Virtual VA paperless claims processing system shows additional documents which are either duplicative of the evidence of record or are not pertinent to the present appeal. The issues of entitlement to service connection for migraine headaches and a back disorder 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. In May 2007, the Veteran raised the issues of entitlement to service connection for a bilateral ankle disorder and a bilateral foot disorder. These issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The evidence is at least in relative equipoise as to whether the Veteran's right ear hearing loss began during the Veteran's period of active duty for training from February 1983 to July 1983. 2. The evidence is at least in relative equipoise as to whether the Veteran's preexisting left ear hearing loss increased in severity beyond its natural progression during a period of active duty for training from March 1983 to July 1983. 3. Tinnitus began during the Veteran's period of active duty for training from February 1983 to July 1983. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, the right ear hearing loss was incurred during a period of active duty for training in the United States Army Reserve. 38 U.S.C.A. §§ 101(24)(B), 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 2. Resolving all doubt in the Veteran's favor, the pre-existing left ear hearing loss was aggravated by a period of active duty for training in the United States Army Reserve. 38 U.S.C.A. §§101(24), 1110, 1131, 1153, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.306, 3.385 (2012). 3. Resolving all doubt in the Veteran's favor, tinnitus was incurred during a period of active duty for training in the United States Army Reserve. 38 U.S.C.A. §§ 101(24)(B), 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. In the decision below, the Board granted the Veteran's claims for service connection for bilateral hearing loss and tinnitus; therefore, the benefits sought on appeal has been granted in full. Accordingly, regardless of whether any notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Analysis A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. §101(24); 38 C.F.R. § 3.6(a), (d). The advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service- connected disabilities from that period); McManaway, 13 Vet. App. at 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim." (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. A claimant still can prove service connection by aggravation without the presumption of aggravation by showing that the preexisting condition worsened beyond the natural progress of the condition during a period of ACDUTRA and by so doing establish status as a "Veteran" under section 101(24)(B) in order to receive VA disability compensation. A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Aggravation may not be conceded where the disability underwent no increase in severity during service, on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Lay testimony is competent to establish the presence of observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)). Lay evidence can be competent to establish a diagnosis when lay evidence (1) is competent to identify the medical condition, (2) reports a contemporaneous medical diagnosis, or (3) describes symptoms at the time which are later supported by a diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). Because lay evidence can be competent to establish continuity of symptomatology, it can serve to establish two of the three elements required for service connection, the existence of current disability and a nexus to service [the third element being in-service disability]. Davidson, 581 F.3d at 1316 (Fed. Cir. 2009) (citing Barr, 21 Vet. App. at 307). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence as to any issue material to the determination, the benefit of the doubt is afforded to the Veteran. I. Hearing Loss Hearing loss for the purpose of VA disability compensation 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. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss during the Veteran's period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Veteran submitted a statement in August 2008 in which he contended that he had acoustic trauma during his ACDUTRA service in the United States Army Reserve. He specifically stated that he was exposed to Howitzers and that a simulated concussion grenade was detonated less than 10 feet from his head during basic training. In February 2012, he testified that his hearing became worse since that time. In December 2008, the Veteran's former spouse, who was married to him from 1986 to 2001, stated that he always had hearing problems since she met him. As for right ear hearing loss, a February 1983 United States Army Reserve entrance examination noted that the Veteran's puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were 15, 10, 5, 5, and 25 respectively, in the right ear. On entrance examination into active duty service in November 1987, 38 C.F.R. §his puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were 10, 5, 5, 20, and 55 respectively, in the right ear. Thus, it is clear that the Veteran developed right ear hearing loss as defined by 38 C.F.R. § 3.385 at some point between his entrance into the United States Army Reserve in February 1983and his period of active duty beginning in November 1987. A December 2008 private audiology examination indicates that the Veteran's hearing loss could have been caused by noise exposure from Howitzers, explosions, and gunfire. The January 2011 VA examination report also shows that the Veteran has current right ear hearing loss by VA standards, and the examiner concluded that the Veteran's hearing worsened in both ears during his Reserve service, although she was unable to conclude whether the Veteran's hearing worsened during active duty service from February 1988 to August 1991. The Board finds the Veteran's assertions of continuous symptomatology of right ear hearing loss since his period of ACDUTRA in the United States Army Reserve to be competent and credible. These statements are consistent and not contradicted by the evidence of record, including the January 2011 VA medical opinion. Further, it is undisputed that the Veteran was exposed to acoustic trauma during ACDUTRA service in 1983. His DD 214 for this period of service shows that he worked in motor transport. Given this history, exposure to noise is found to be consistent with the circumstances of the Veteran's service. See 38 U.S.C.A. § 1154(a). Therefore, considering the totality of the evidence, including the Veteran's service treatment records, post-service medical records, and credible assertions of continuous symptomatology of right ear hearing loss since 1983, the Board finds that the evidence is at least equipoise on the question of a nexus, based on continuity of symptomatology, between his period of ACDUTRA service in 1983 and the current right ear hearing loss. Resolving all reasonable doubt in the Veteran's favor, the claim of service connection for right ear hearing loss is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As for left ear hearing loss, the evidence shows that on entrance examination into the United States Army Reserve in February 1983, the Veteran's puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were 15, 5, 5, 5, and 45 respectively, in the left ear. Therefore, the Veteran's left ear hearing loss preexisted his ACDUTRA service in 1983. On entrance examination into active duty service in November 1987, puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were 10, 5, 0, 5, and 50 respectively, in the left ear. As discussed above, a private audiology examination in December 2008 shows that the Veteran's hearing loss could have been caused by noise exposure from Howitzers, explosions, and gunfire. On VA audiological examination in January 2011, the Veteran had left ear hearing loss as defined by 38 C.F.R. § 3.385 and he reported that he has had hearing loss since a grenade went off in the 1980s while he was in basic training in the Reserve. The examiner concluded that the Veteran's hearing worsened in both ears during Reserve service, although she was unable to conclude whether the Veteran's hearing worsened during active duty service from February 1988 to August 1991. The presumption of soundness and presumption of aggravation are not applicable for the appellant's period of ACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40, 44 (2010). Nevertheless, the issue of service connection for the preexisting left ear hearing loss turns on whether it was aggravated by his ACDUTRA service in 1983. As to whether the Veteran's pre-existing left ear hearing loss was aggravated by service, the Veteran contends that his hearing acuity decreased since his exposure to a grenade explosion during ACDUTRA service in 1983. The Board finds the Veteran's assertions to be competent and credible, and they are consistent with the other evidence of record. A comparison between the audiogram in February 1983 and the audiogram in November 1987 shows an upward shift in puretone threshold at 4000 Hertz. The January 2011 VA examiner also concluded that the left ear hearing loss worsened during the Veteran's Reserve service in 1983. There have been no findings that the increase was due to the natural progression of the disease. Therefore, for all these reasons, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's left ear hearing loss was aggravated by ACDUTRA service in 1983. Resolving all reasonable doubt in the Veteran's favor, the claim of service connection for left ear hearing loss is granted. 38 U.S.C.A. §§ 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.306(b). II. Tinnitus In August 2008, the Veteran stated that he has had tinnitus since his acoustic trauma during ACDUTRA service, but noted that he did not seek medical treatment during service because he was in a hostile atmosphere and did not want to be perceived as someone who complained. The Veteran testified that, during ACDUTRA service in 1983, a simulated concussion grenade was detonated less than 10 feet from his head, which caused his ears to bleed. He stated that he has had tinnitus ever since that time. The Veteran's service treatment records are negative for any complaints, treatment or diagnoses related to tinnitus. Nevertheless, a private audiology examination in December 2008 shows that the Veteran complained of having ringing in both ears. The January 2011 VA examiner also noted that the Veteran complained of ringing in his ears since a grenade went off in the 1980s during basic training in the United States Army Reserve. However, the examiner did not provide an opinion regarding the relationship between the Veteran's tinnitus and his ACDUTRA service in the Reserve in the 1980s. At the outset, the Board acknowledges that the Veteran is competent to report symptoms that he can observe. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). As for tinnitus, it is a condition under case law where lay observation has been found to be competent to establish the presence of the disability. Charles v. Principi, 16 Vet. App. 370 (2002) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). The Board also finds the Veteran's assertion of continuous symptomatology of tinnitus since service to be credible, as they are consistent and uncontroverted by the other evidence of record. The Board notes that the credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). The Board also finds the Veteran's statement that he did not seek treatment during service to be credible, as he explained that he was in an unfriendly environment and did not want to be perceived as someone who complained. For these reasons, the Board finds that the weight of the evidence supports the conclusion that the onset of the Veteran's current tinnitus was incurred during ACDUTRA service in 1983. Resolving any reasonable doubt in the Veteran's favor, the claim of service connection for tinnitus is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Subject to the provision governing the award of monetary benefits, service connection for bilateral hearing loss is granted. Subject to the provision governing the award of monetary benefits, service connection for tinnitus is granted. REMAND I. Migraine Headaches In August 2008 and in other statements, the Veteran has contended that his migraine headaches were secondary to his tinnitus and back disorder. VA progress notes dated in May 2010 show an impression of recurrent headaches, and the Board has granted service connection for tinnitus herein. For these reasons, a VA medical opinion is necessary to decide the claim of entitlement to service connection for migraine headaches. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). McLendon v. Nicholson, 20 Vet. App. 79 (2006). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006. The new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. In this case, the RO has not informed the Veteran of the evidence needed to substantiate a claim on a secondary basis. Nor has he been provided the provisions of 38 C.F.R. § 3.310 in a statement of the case (SOC) or supplemental statement of the case (SSOC). Therefore, on remand, such notice should be provided. II. Back Disorder A January 2011 VA spine examiner stated that it would be mere speculation to opine as to whether the Veteran's lumbar spine osteoarthritis is the same as or caused by the lower back problems shown in service from 1988 to 1990. In so doing, she noted that the Veteran's low back pain in service was mechanical in nature, that his pre-employment physical examination in 1992 evaluated his spine as being normal, and that he injured his back after service in 1993. Thus, she believed it would be difficult to attribute how much aging and other intervening wear and tear is contributing to the Veteran's current back disorder. The January 2011 VA examiner did not provide an opinion, as she believed that she could not do so without resort to speculation. The Court has explained that opinions that contain the "mere speculation" language, without more, amount to "nonevidence" neither for nor against the claim because service connection may not be based on speculation or remote possibility. See Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also Jones v. Shinseki, 23 Vet. App. 382 (2010) (noting that the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence). For these reasons, the January 2011 VA examiner's opinion is inadequate, and an additional opinion is necessary. While on remand, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records from 2011 to the present. Any records obtained must be associated with the claims folder. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Provide the Veteran with VCAA notice that includes notice of the information or evidence needed to substantiate a claim for service connection on a secondary basis. 3. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of his headache disorder. The claims file must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After examining the Veteran and reviewing the record, the examiner is asked to address the following questions: a.) Is it at least as likely as not (50 percent probability or more) that the Veteran has a headache disorder, to include migraine headaches, which is causally or etiologically related to the Veteran's military service? The examiner is asked to accept as true the Veteran's report that a simulated concussion grenade was detonated less than 10 feet from his head during basic training during ACDUTRA service in 1983 and caused his ears to bleed. The examiner is asked to comment on the relationship between this incident and any current headache disorder. b.) Is it at least as likely as not (50 percent probability or more) that any headache disorder, to include migraine headaches, is proximately due to, or the result of the Veteran's service-connected tinnitus or a current back disorder? c.) Is it at least as likely as not (50 percent probability or more) that any headache disorder, to include migraine headaches, was aggravated by the service-connected tinnitus or current back disorder? The examiner is asked to comment on whether some of the increase in severity is due to natural progress of the headache disorder, and if so, the examiner should identify the degree of increase in severity due to natural progression. In rendering the opinions, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current headache disorder is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. To the extent possible, return the claims file to the examiner who conducted the January 2011 VA spine examination, if available. If this examiner is not available, the Veteran's claim folder should be reviewed by another appropriate examiner. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), that the Veteran's back disorder is causally or etiologically related to the Veteran's military service from February 1988 to August 1991. The examiner is asked to consider the following: * The Veteran's contention that he has had back problems since his injury in service when he lifted nets that weighed 150 pounds. * Service treatment records that show the following: in April 1988, the Veteran injured his low back by pulling muscles in the back while lifting tents and nets and the assessment was musculoskeletal; on April 14, 1990, the Veteran complained of radiating back pain to the right side after lifting a heavy box and mowing the lawn, and the examiner noted that the spine appeared to be crooked with a curve to the right side and provided an assessment of acute lumbosacral strain; on April 26, 1990 the Veteran claimed his duties required a lot of bending that aggravated his back, and the assessment was mechanical low back pain. * Post service private medical records that show the following: in August 1992, the Veteran's employment physical examination evaluated the Veteran's back as normal, and the accompanying x-ray showed narrow discs between L4 and S1 noting that this could be an anatomic variation or acquired degenerative disc narrowing; in July 1993, the Veteran slipped on an oil slick at work and was diagnosed with muscle spasms of the right low back versus disk radiculopathy, and x-ray showed possible chronic degenerative disc narrowing or an acute disc herniation between L4 and S1 which may be a congenital variation; in August 1993, EMG studies were normal; in a November 1993, MRI there was mild degenerative disc disease with minimal central bulging at the disc at the L4-5 level; in August 1994, the Veteran was treated for back pain after lifting a heavy object at work. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current back disorder is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the requested action, and any additional notification and development deemed warranted, readjudicate the Veteran's claims for service connection for migraine headaches and a back disorder, including consideration of any additional information obtained as a result of this remand. If the decision with respect to one or both of the claims remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded an appropriate period of time within which to respond thereto. This SSOC should set forth the provisions of 38 C.F.R. § 3.310. The case should then be returned to the Board for further appellate consideration, if in order. 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. 2012). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs