Citation Nr: 1301424 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 94-36 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the left upper extremity, claimed as loss of feeling of the left side, to include as secondary to service-connected non-Hodgkin's lymphoma (NHL). 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as loss of feeling of the left side, to include as secondary to service-connected NHL. 3. Entitlement to service connection for a hiatal hernia, genitourinary disorder (including prostatic hypertrophy), sleep apnea, S1 radiculopathy, and polycythemia vera, to include as secondary to service-connected NHL. 4. Entitlement to service connection for a disability manifested by symptoms of stomach problems, night sweats and chronic fatigue, to include as secondary to service-connected NHL. 5. Entitlement to service connection for a disability manifested by symptoms of shortness of breath with chronic cough, sleep problems, dizziness, vision problems, right testicle pain, kidney pain and chest pain. 6. Entitlement to an evaluation in excess of 10 percent for hypertension. 7. Entitlement to an evaluation in excess of 30 percent for lytic bone lesions, left parietal bone with probable eosinophilic granuloma and NHL with recurrent headaches. 8. Entitlement to an initial evaluation in excess of 10 percent for chemical phlebitis of the right upper extremity. 9. Entitlement to an effective date earlier than March 27, 2009, for the award of service connection for chemical phlebitis of the right upper extremity. 10. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from May 1975 to September 1977. He died in July 2010. The appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appellant testified before the undersigned Veterans Law Judge at a May 2012 hearing conducted via videoconference. A transcript of the hearing is of record. Procedural History This case has had a long and complicated procedural history. The Veteran's claims of service connection for a hiatal hernia, genitourinary disorder and disability manifested by stomach problems, loss of feeling on the left side, night sweats and chronic fatigue were denied by the Board in an October 2009 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran died while the appeal was pending before the Court, and his surviving spouse filed a timely request to be substituted as the appellant in his place. See Breedlove v. Shinseki, 24 Vet. App. 7 (2010). In December 2010, the Court issued an order granting a Joint Motion for Remand (Joint Motion), vacating the Board's October 2009 denial and remanding the claims for further development. In November 2011, the Board remanded the Veteran's previously disallowed claims, and also determined that a timely notice of disagreement had been filed with respect to the remaining claims currently on appeal, ordering the issuance of a statement of the case (SOC) with regards to these issues. The appellant filed a timely substantive appeal after the issuance of the SOCs; these issues are now before the Board for appellate consideration. The issues of service connection for a disability resulting in symptoms of stomach problems, night sweats, chronic fatigue, shortness of breath with chronic cough, sleep problems, dizziness, vision problems, right testicle pain, kidney pain and chest pain; service connection for a hiatal hernia, genitourinary disorder, sleep apnea, S1 radiculopathy and polycythemia vera; an increased initial evaluation for chemical phlebitis of the right upper extremity; and entitlement to TDIU 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. Peripheral neuropathy of the left upper extremity was caused by treatment received for a service-connected disability. 2. Peripheral neuropathy of the left lower extremity was caused by treatment received for a service-connected disability. 3. Hypertension was not manifest by diastolic pressure predominantly greater than 110mm or systolic pressure predominantly greater than 200mm. 4. The headache residuals of lytic bone lesions, left parietal bone with probable eosinophilic granuloma, and NHL were not manifest by very frequent and completely prostrating and prolonged attacks or produce severe economic inadaptability 5. The Veteran's informal claim for service connection for swelling of the right hand and arm, later diagnosed to be chemical phlebitis, was received by VA on October 7, 1998 and has been continuously prosecuted since. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the left upper extremity is proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2012). 2. Peripheral neuropathy of the left lower extremity is proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2012). 3. The criteria for an evaluation in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). 4. The criteria for an evaluation in excess of 30 percent for left parietal bone with probable eosinophilic granuloma and NHL with recurrent headaches have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.117, Diagnostic Code 7715, § 4.124a, Diagnostic Code 8100 (2012). 5. The criteria for an effective date of October 7, 1998, for the award of service connection for chemical phlebitis of the right upper extremity have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present case, the unfavorable Agency of Original Jurisdiction (AOJ) decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. Where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. With respect to the increased evaluation claims, the Veteran was provided sufficient pre-adjudication notice through a June 2008 letter. The duty to notify the Veteran (and by extension the appellant) has been satisfied. 38 U.S.C.A. § 5103. Regarding the issues of service connection and appropriate effective date decided below, since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance the notice and duty to assist requirements with respect to these issues. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). VA also has a duty to assist the appellant in the development of the claim. Service treatment records are associated with claims file. All post-service treatment records and reports identified by the appellant have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran was afforded a VA examination in August 2008 to address the severity of his service-connected disabilities on appeal. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); Wells v. Principi, 327 F. 3d 1339 (Fed. Cir. 2002). This examination is adequate for the purposes of the instant claim, as it involved a review of the Veteran's pertinent medical history as well as a physical examination of the Veteran, and provide a review of relevant symptomatology related to the disabilities on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. I. Service Connection Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). During the course of this appeal, VA amended 38 C.F.R. § 3.310 (effective October 10, 2006), to implement the decision in Allen. See 71 Fed. Reg. 52,744 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310(b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). The Veteran asserted that he suffered from a loss of feeling on the left side due to his service-connected NHL or chemotherapy treatment received for this condition. Significantly, a December 2011 VA opinion notes that chemotherapy used to treat NHL often causes peripheral neuropathy, which can cause loss of feeling in the feet or hands. Likewise, a January 2012 VA addendum opinion found it at least as likely as not that the Veteran's complaints of a loss of sensation in the left side is the result of treatment for NHL on the same basis. In light of such evidence, the Board concludes that service connection is warranted for peripheral neuropathy of both the left upper and left lower extremity (claimed as loss of feeling on the left side) as proximately due to a service-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. II. Increased Evaluations Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered is not limited to that reflecting the then current severity of the disorder. Rather, the Board must consider whether staged ratings are appropriate. In this regard, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson v West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Hypertension The Veteran asserted entitlement to an evaluation greater than 10 percent for his service-connected hypertension. A rating of 10 percent is warranted for hypertensive vascular disease where the diastolic pressure is predominantly 100 or more; or systolic pressure is predominantly 160 or more; or when continuous medication is shown necessary for the control of hypertension and there is a history of diastolic blood pressure of predominantly 100 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). A 20 percent evaluation requires diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. A 40 percent evaluation requires diastolic pressure of predominantly 120 or more. A 60 percent evaluation requires diastolic pressure of predominantly 130 or more. Id. After careful review, the Board concludes that the competent medical evidence does not support an evaluation greater than 10 percent at any point during the appeal period. In this regard, an August 2008 VA examination report reveals blood pressure readings of 119/84, 124/87 and 133/82. At no point during the appeal period do the Veteran's treatment records demonstrate diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. The Board acknowledges the appellant's contentions that the Veteran's service-connected hypertension warranted a higher evaluation. However, in determining the actual degree of disability, the Board finds that objective medical examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the appellant, or the Veteran, are of less probative weight than the competent medical evidence in determining whether the rating criteria under 38 C.F.R. § 4.104 with respect to determining the severity of his service-connected hypertension. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1) and (2) (2012). The Board finds that an evaluation in excess of 10 percent for hypertension is not warranted at any point during the appeal period. See Hart, supra. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an increased evaluation for hypertension, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). Lytic Bone Lesions and NHL with Recurrent Headaches The appellant, and the Veteran before her, asserts entitlement to an increased evaluation for service-connected lytic bone lesions and NHL with recurrent headaches. Specifically, she asserts that the Veteran's headaches and NHL were two separate, distinct disabilities and, therefore, these disabilities should be evaluated separately. Regarding the Veteran's disabilities, the initial grant of service connection for NHL recognized that disorder as a part of the previously service-connected disability that was manifested by chronic headaches. That disability has been consistently rated based on the Veteran's headaches. Any other residuals of the Veteran's NHL would be separately evaluated as discussed below. A 100 percent evaluation is provided for NHL with active disease or during a treatment process. See 38 C.F.R. § 4.117, Diagnostic Code 7715. As any other symptomatology found to be residuals pursuant to the remand directive below will be evaluated separately, there is no prejudice in proceeding with the evaluation for headache residuals. Regarding migraine headaches, a 30 percent evaluation is warranted with characteristic prostrating attacks occurring on average once a month over a several month period. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). A maximum 50 percent evaluation is warranted with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The record during the appeal period is varied regarding the frequency and severity of the Veteran's headaches. For example, a March 2007 VA neurology outpatient note indicates the Veteran reported headaches of 10/10 intensity occurring once or twice a week, with some relief after taking Tylenol 3 for the pain. A February 2008 VA treatment note indicates the Veteran then denied any recurrent headaches, and notes he was prescribed propranolol for migraine prevention. At an August 2008 VA examination, the Veteran reported headaches that begin on the left side as a burning pain with occasional photophobia and nausea. He stated that his headaches had decreased in frequency to three times per month and were prostrating in nature, requiring him to lie down. He reported that Tylenol 3 decreased the intensity of the headache but did not relieve the pain. Finally, he reported that he missed up to 150 hours per year of work due to his headaches prior to becoming unemployed. Regarding the Veteran's headaches, to the extent any of his episodes could be described as prostrating attacks, they appeared less than very frequent and prolonged. The record reflects the Veteran generally reported persistent headaches, but overall the episodes that could be plausibly characterized as prostrating attacks occurred infrequently, giving due consideration to the Veteran's self-reported description contained in the record. In fact, the Veteran reported that his headaches had decreased in intensity and severity since being prescribed propranolol in 2007, and while his pain was not relieved completely, it was further reduced by taking Tylenol 3. Finally, while the Veteran reported becoming unemployed in December 2007, there is no evidence such unemployment was due to the Veteran's headaches. Overall, the Board finds the evidence more closely approximates a 30 percent evaluation for headaches under Diagnostic Code 8100, as the evidence does not indicate the Veteran suffered from very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board again acknowledges the appellant's contentions that the Veteran's service-connected headaches warranted a higher evaluation. However, in determining the actual degree of disability, the Board finds that objective medical examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the appellant, or the Veteran, are of less probative weight than the competent medical evidence in determining whether the rating criteria under 38 C.F.R. § 4.124a with respect to determining the severity of his service-connected residual headaches. See Moray, 2 Vet. App. at 214. The Board finds that an evaluation in excess of 30 percent for residual headaches associated with lytic bone lesions and NHL is not warranted at any point during the appeal period. See Hart, supra. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an increased evaluation for residual headaches, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). Extraschedular Evaluation The discussion above reflects that the symptoms of the Veteran's hypertension and residual headaches are contemplated by the applicable rating criteria. The effects of the Veteran's disabilities, namely elevated blood pressure and the frequency and severity of the Veteran's headaches, have been fully considered and are contemplated in the rating schedule. There are higher ratings available under the diagnostic codes addressed in this decision, but the Veteran's hypertension and residual headaches are not productive of the manifestations that would warrant the higher ratings. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). II. Earlier Effective Date In a May 2009 rating decision, service connection was granted for chemical phlebitis of the right upper extremity (claimed as swelling of the right arm and hand) effective March 27, 2009. In appealing the effective date assigned, the appellant asserts an earlier effective date is warranted, as the Veteran had complained of swelling of the right arm and hand since his chemotherapy in the 1990s. Service connection for non-Hodgkin's lymphoma was granted by a Board decision in January 1993. In conjunction with a pending claim for an increased evaluation, the Veteran submitted a statement, received on October 7, 1998, requesting a "reevaluation," noting his right hand and arm had been swollen due to leakage of chemotherapy. Service connection for a swollen right hand and arm was denied by a November 1998 rating decision. He later submitted a December 1999 private physician's statement which, in pertinent part, noted the Veteran developed chemical phlebitis due to chemotherapy, which can persist for years after treatment has been completed. The Veteran submitted a notice of disagreement and, following the issuance of a statement of the case, a timely substantive appeal. The claim remained in appellate status and was continuously prosecuted until the May 2009 awarding service connection. The effective date for an award of disability compensation based on an original claim for service connection shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i) (2012). VA regulations provide that the terms "claim" and "application" mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). VA is not required to conjure up issues that were not raised by an appellant. See Brannon v. West, 12 Vet. App. 32 (1998). However, VA has an obligation to liberally construe the pleadings of a claimant to discern all issues raised in the record. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006) (VA is required to construe all of a pro se Veteran's pleadings sympathetically). The Veteran first mentioned swelling in the right hand and arm in the October 1998 statement, in which he is clearly seeking service connection for the condition. Further, the Veteran, and later his surviving spouse, had continuously prosecuted the claim for service connection and, following the initial award of service connection in May 2009, filed a timely notice of disagreement with the assigned effective date. The remaining issue is therefore the date entitlement arose (i.e., when did the Veteran first develop the disability for which service connection was granted). The Veteran clearly stated that he was seeking service connection for a swollen right hand and arm due to leakage of chemotherapy used to treat his service-connected NHL. This condition was later diagnosed as chemical phlebitis, first by a private physician as early as December 1999, and later by a VA examiner in March 2009. To the extent the Veteran claimed a group of symptoms, as opposed to specifically claiming "chemical phlebitis," the Board notes that, as a layperson, he is not competent to render an independent diagnosis, and therefore cannot be penalized for such an omission. See generally Espiritu, 2 Vet. App. 492. Consequently, the evidence demonstrates the Veteran suffered from chemical phlebitis of the right upper extremity at the time he filed his claim on October 7, 1998. As such, the Board finds that an effective date of October 7, 1998, the day VA received the Veteran's claim, is warranted. See 38 C.F.R. § 3.400(b)(2)(i). ORDER Service connection for peripheral neuropathy of the left upper extremity is granted. Service connection for peripheral neuropathy of the left lower extremity is granted. An evaluation in excess of 10 percent for hypertension is denied. An evaluation in excess of 30 percent for lytic bone lesions, left parietal bone with probable eosinophilic granuloma and NHL with recurrent headaches is denied. An effective date of October 7, 1998, for the award of service connection for chemical phlebitis of the right upper extremity is granted. REMAND Prior to his death, the Veteran claimed a number of disabilities, and symptomatology, either as directly due to his period of active service or, in the alternative, as secondary to his service-connected NHL or treatment received for this disability. He also claimed entitlement to TDIU. For the reasons discussed below, additional development is required prior to a Board decision on these issues. VA Opinions The Veteran claimed a number of conditions as directly related to active service. Specifically, he asserted that he suffered from a disability manifested by shortness of breath and chronic cough, potentially due to in-service exposure to asbestos. He also asserted that he suffered from polycythemia from his time in active service to the present. Finally, he claimed he suffered from symptoms of stomach problems, dizziness, vision problems, pain in the right testicle and a sleeping disorder since active service. See, e.g., July 2007 statement. He also asserted a number of disabilities and symptoms were caused or aggravated by either his service-connected disabilities or treatment received for these conditions. A VA opinion has not been obtained to address most of these issues. VA has a duty to provide a VA examination (or obtain a medical opinion) when the record lacks evidence to decide the appellant's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of the Veteran's assertions, and the evidence of record, the Board finds that a VA opinion must be obtained to address whether the Veteran's asserted symptomatology prior to his death are attributable to a diagnosed disability, and whether any claimed disability was etiologically related to his period of active service or was caused or aggravated by his service-connected disabilities. Noncompliance with Prior Remand In the November 2011 remand, the Board noted the Veteran had filed a timely notice of disagreement with a September 2008 rating decision denying service connection for a disability manifested by chest pains. The Board instructed the AOJ to issue an SOC regarding this issue. While a February 2012 SOC addressed a number of issues, chest pains was not among them. Further, while a VA opinion was obtained in December 2011, with addendum in January 2012, addressing the claimed issues of a hiatal hernia, genitourinary disorder, night sweats and chronic fatigue, these opinions did not fully address the questions posed by the Board in the November 2011 remand regarding secondary service connection. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Intertwined Issues Finally, the claim for an increased initial evaluation for chemical phlebitis and entitlement to TDIU are impacted by the outcome of other remanded claims and therefore, are inextricably intertwined with these claims. The Court has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case with respect to the issue of entitlement to service connection for a disability manifested by chest pains. All appropriate appellate procedures should then be followed. The appellant should be advised that she must complete his appeal of this issue by filing a timely substantive appeal following the issuance of a statement of the case. 2. Assign an initial evaluation for chemical phlebitis of the right upper extremity for the period October 7, 1998, to March 27, 2009. 3. Forward the claims file to a physician with relevant experience in hemic and lymphatic system disorders. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the physician prior to rendering an opinion. If the physician does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available for review. After reviewing the record, the physician is to address the following: a. For the claimed symtomatology of stomach problems (other than hiatal hernia), night sweats, chronic fatigue, shortness of breath with chronic cough, sleep problems (other than sleep apnea), dizziness, vision problems, right testicle pain and kidney pain, offer an opinion as to whether each group of symptoms can be attributed to a diagnosed disability. If so, please state the appropriate diagnosis. b. For a hiatal hernia, genitourinary disorder, sleep apnea, S1 radiculopathy and polycythemia vera, offer an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that the Veteran suffered from the claimed disability at any point prior to his death. c. For each confirmed diagnosis offered in (a) and (b) above, please provide an opinion as to the following: i. Is it at least as likely as not (probability of at least 50 percent) that the claimed disability is etiologically (incurred, caused or aggravated by) the Veteran's active service? Please address the Veteran's assertions of an in-service diagnosis and continuity of symptomatology where appropriate. ii. Is it at least as likely as not (probability of at least 50 percent) that the claimed disability is proximately due to (caused by) any service-connected disability, to include any related treatment for a service-connected disability? Please address the Veteran's assertions of the effects of chemotherapy treatment for his service-connected NHL. iii. Is it at least as likely as not (probability of at least 50 percent) that the claimed disability was aggravated by any service-connected disability, to include any related treatment for a service-connected disability? Please address the Veteran's assertions of the effects of chemotherapy treatment for his service-connected NHL. Aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability(i.e., a baseline) before the onset of the aggravation. d. Offer an opinion as to whether it is at least as likely as not that the Veteran was rendered unable to follow substantially gainful employment prior to his death due solely to his service-connected disabilities. The physician must provide a complete rationale for any opinion expressed, based on the physician's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the physician must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After completing the above, and any other development deemed necessary, readjudicate the appellant's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, she and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs