Citation Nr: 1303213 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-09 881 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a left wrist disability. 3. Entitlement to service connection for headaches. 4. Entitlement to service connection for tinnitus. 5. Whether new and material evidence has been received to reopen a previously-denied claim for flat feet. 6. Whether new and material evidence has been received to reopen a previously-denied claim for bilateral shin splints. 7. Entitlement to service connection for a bilateral hip disability, claimed as secondary to flat feet and bilateral shin splints. 8. Entitlement to service connection for flat feet. 9. Entitlement to service connection for bilateral shin splints. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to May 1996 and from February 2006 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) from RO decisions of April 2008 and December 2008. The Veteran presented sworn testimony in support of his appeal during an October 2012 hearing before the undersigned Veterans Law Judge. The Board observes that in the Veteran's original August 2007 claim, he characterized one of his claimed disabilities as "medical pain" involving his "feet." The RO has adjudicated claims involving the Veteran's flat feet and plantar fasciitis. However, review of the Veteran's medical records also shows that he has a bunion affecting his left foot, as well as arthritis of his right first tarsometatarsal joint and a right calcaneal spur. As it is the responsibility of the VA to construe claims liberally, these matters are referred to the RO for appropriate action (service connection for a bilateral foot disability, other than the issues before the Board at this time). The issues of entitlement to service connection for flat feet and bilateral shin splints 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. During the October 2012 hearing on appeal, the Veteran, with the assistance of his authorized representative, withdrew his appeals for entitlement to service connection for a left ankle disability and a left wrist disability. 2. Informed medical opinion links the Veteran's tension headaches to stress during his second period of service. 3. The Veteran's tinnitus was initially documented during his second period of active service and continues to the present time. 4. The Veteran's claim for entitlement to service connection for flat feet was denied by the RO in July 1996; he did not appeal this decision. 5. New evidence received after the July 1996 denial relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for entitlement to service connection for flat feet. 6. The Veteran's claim for entitlement to service connection for bilateral shin splints was denied by the RO in July 1996; he did not appeal this decision. 7. New evidence received after the July 1996 denial relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for entitlement to service connection for bilateral shin splints. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of the appeals for entitlement to service connection for a left ankle disability and entitlement to service connection for a left wrist disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. Service connection for headaches is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 4. The July 1996 denial of service connection for flat feet is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 5. Evidence received since the July 1996 denial of service connection for flat feet is new and material; therefore this decision is reopened. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 6. The July 1996 denial of service connection for bilateral shin splints is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 7. Evidence received since the July 1996 denial of service connection for bilateral shin splints is new and material; therefore this decision is reopened. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This information was provided in letters mailed to him in December 2007, October 2008, and June 2009, prior to the most recent adjudications of the claims at issue. With regard to claims to reopen based upon the submission of new and material evidence, the United States Court of Appeals for Veterans Claims (Court) has held that the terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service-connection claim. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was informed of these elements with regard to his flat feet claim in a June 2009 letter and with regard to his shin splints claim in an October 2008 letter. With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate with regard to the issues decided herein. The examination reports relied upon herein were predicated on a review of the relevant medical records; contain a description of the history of the disability at issue; and the examiners documented and considered the Veteran's complaints and symptoms. The examiners considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Service treatment records, VA medical records, and VA examination reports have been obtained and reviewed in support of the Veteran's claims. All relevant records and contentions have been carefully reviewed, including all records contained in the Veteran's physical paper file and in his virtual VA electronic file. The Veteran's hearing testimony has likewise been carefully reviewed and considered in support of his appeals. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. § 1110. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Left ankle and left wrist The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn this appeal during the October 2012 hearing on appeal. His request was reduced to writing and incorporated into his claims file when the transcript of the hearing was added to his file. Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. Headaches The Veteran is claiming that his headache problem began during his deployment to Southwest Asia in 2006, and continues to the present time. He underwent a VA neurological examination in April 2008. Following a review of the Veteran's history and a clinical examination, the examiner rendered a diagnosis of tension headaches and included the following comments: His headaches appear to be tension-type, of stable frequency and very mild impact as noted in the history. It is possible based on history and examination that he might have a cervicogenic trigger, or that combat stresses may have triggered or aggravated his headaches. I could find no evidence of an alternative cause. Given the recency of his military service, I would opine it as least as likely as not that his headaches were aggravated by military service. During the October 2012 hearing on appeal, the Veteran confirmed that he continues to experience headaches and that he takes an over-the-counter medication for the headaches. The Board finds the VA examiner's opinion controls the outcome of this claim. The opinion well-explained and the examiner is competent to render the opinion as he has appropriate credentials. The Veteran has current headaches, which he is competent to identify for the record. He had in-service stresses related to his deployment to Southwest Asia to which the examiner has attributed the headache disability. Therefore, service connection is warranted for headaches. Tinnitus Review of the Veteran's service treatment records shows that he initially reported experiencing tinnitus in August 2007, prior to his discharge from his second period of active service. At that time, he indicated that he experienced tinnitus during his deployment to Southwest Asia and was experiencing it at that time. The Veteran was provided with a VA audiological examination in January 2008. He complained of tinnitus since 2006 at that time. He also reported that the tinnitus was not constant, as it occurred a few time a week and lasted less than a minute. Following clinical examination and audiometric testing, the examiner rendered a diagnosis of normal hearing and normal middle ear function in both ears. She noted that tinnitus is a subjective complaint and that no objective measures exist to validate is presence or absence. She also opined that tinnitus that lasts for thirty seconds a few times a week is not consistent with tinnitus associated with noise exposure, and that therefore military noise exposure did not contribute to the Veteran's complaints of tinnitus. During the October 2012 hearing, the Veteran testified that his tinnitus was constant in nature and that it had begun during his deployment to Southwest Asia. The veteran's hearing testimony is deemed helpful to the Board and credible insofar as it comports with the medical evidence of record. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Upon review, the Board finds that service connection for tinnitus is warranted. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time. 38 C.F.R. § 3.303. In this case, the contemporaneous evidence shows that the Veteran first reported tinnitus during service, and his credible statement establishes that it continues today. The examiner's explanation that the Veteran's tinnitus was not likely to have been caused by acoustic trauma is helpful also; however, it indicates that the Veteran's tinnitus must have a cause other than acoustic trauma. The timeline of the initial complaint occurring during service and continuing until the present is the basis for the grant of service connection. Bilateral flat feet and bilateral shin splints Pursuant to 38 U.S.C.A. § 5108, the VA must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. New and material evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Notwithstanding any other provision, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the provisions of 38 C.F.R. § 3.156(a). Such records include service records that are related to a claimed in-service event, injury, or disease. However, this provision does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim. 38 C.F.R. § 3.156(c). The requirement of the receipt of new and material evidence to reopen a claim is a material legal issue that the Board is required to address on appeal, regardless of the RO's action in the matter. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is 'new and material' as defined above. See Elkins v. West, 12 Hodge v. West Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C.A. § 5108; 155 F.3d 1356, 1359-60 (Fed. Cir. 1998); 38 C.F.R. § 3.156(a). Second, if VA determines that the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not new and material, the inquiry ends and the claim cannot be reopened. In determining whether the evidence is new and material, the credibility of the newly presented evidence is presumed. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). The Board is required to consider all of the evidence received since the last disallowance. Hickson v. West, 12 Vet. App. 247, 251 (1999). In a recent case, the Court found that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, after the Veteran's first period of service, he submitted a claim for entitlement to service connection for fallen arches or flat feet. The claim was denied based upon medical evidence which was interpreted by adjudicators as showing that the Veteran's flat feet pre-existed service and had not been aggravated during service. The Veteran was notified of this decision by letter of July 1996. He did not appeal the decision, no evidence was received within one year of the decision, and no new service records reflecting the period of time prior to the July 1996 decision have been submitted. The decision thus became final one year after he was notified of it. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b),(c), 20.302, 20.1103. In August 2007, prior to his discharge from his second period of active service, the Veteran submitted a second claim for problems involving his feet. Because the problem of flat feet had previously been denied, for adjudication purposes, the RO appropriately separated this problem from the Veteran's other foot problems, which had not previously been adjudicated. (Service connection for plantar fasciitis was denied in an August 2009 RO decision, with which the Veteran has not expressed disagreement; and the issues of entitlement to service connection for bunions, arthritis and a right calcaneal spur have been referred to the RO for appropriate action in the INTRODUCTION section above.) The RO also undertook appropriate evidentiary development, to include obtaining copies of the Veteran's National Guard and active service treatment records dated subsequent to his 1996 discharge from active service. Upon review in April 2008, the RO determined that no new and material evidence had been submitted sufficient to reopen the previously-denied claim. As set forth above, however, it is the responsibility of the Board to address this question on appeal, regardless of the RO's action in the matter. Barnett. After careful review of the newly-obtained evidence, the Board determines that new and material evidence has been added to the record, and that such evidence supports reopening the claim for service connection for flat feet. In particular, National Guard medical examination reports dated in 1998 and 2005 reflect that the Veteran's feet were deemed to have been normal upon clinical examination at those times. Because these records were not in existence when the RO denied the claim in 1996, the provisions of 38 C.F.R. § 3.156(c) are not applicable. However, because they were not in existence when the RO denied the claim in 1996, they are by definition, new to the record. The newly-acquired records are not duplicative of any previously-considered evidence. As these records reflect the Veteran's physical condition in between periods of active service, they raise the possibility of a claim based direct service connection for flat feet as incurred during his second period of active service or more likely, of a claim based upon aggravation of a pre-existing condition which had subsided or been in remission between the two periods of active service. They are thus material as they raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board therefore holds that the Veteran has submitted new and material evidence sufficient to reopen the previous denial of service connection for bilateral flat feet. As set forth by the Court, the language of 38 C.F.R. § 3.156(a) creates a low threshold, intended to enable rather than preclude the reopening of previously-denied claims. Shade. Review of the procedural history and development of the instant appeal persuades the Board that it cannot decide the merits of the Veteran's reopened claim for service connection for flat feet without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). It is therefore addressed further in the REMAND which follows. With regard to the Veteran's attempt to reopen the previously-denied claim for service connection for shin splints, the Board observes that the notice letter provided to the Veteran in July 1996 was less than adequate, as the letter only identified the denial for flat feet. However, the letter indicates that a copy of the July 1996 decision was enclosed. The decision document shows that both claims were denied. In other words, for purposes of this decision, we find that the veteran did receive notice that his claim for service connection for shin splints had been denied, despite the less-than-optimal form of the notice. Given our decision, set forth below, to reopen the claim, no prejudice accrues to the Veteran. The Veteran did not appeal the decision, no evidence was received within one year of the decision, and no new service records reflecting the period of time prior to the July 1996 decision have been submitted. The decision thus became final one year after he was notified of it. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b),(c), 20.302, 20.1103. Newly-received evidence includes the report of a July 2011 X-ray showing an asymmetric periosteal reaction anteriorly in the tibial shaft with transverse radiolucent lines. The interpreting radiologist commented that these findings raise the consideration of a stress fracture or stress injury, but that the findings needed to be correlated clinically. Because the evidence indicating that the Veteran likely has a current disability involving stress fractures, was not in existence when the RO denied the claim in 1996, they are new to the record and are not duplicative of any previously-considered evidence. Furthermore, this new evidence is material as it tends to establish a critical element in the Veteran's claim for service connection. 38 C.F.R. § 3.156(a). The Board therefore holds that the Veteran has submitted new and material evidence sufficient to reopen the previous denial of service connection for bilateral shin splints. As set forth by the Court, the language of 38 C.F.R. § 3.156(a) creates a low threshold, intended to enable rather than preclude the reopening of previously-denied claims. Shade. However, other critical elements remain to be established, including a medical connection between the 2011 findings and the Veteran's service. Review of the procedural history and development of the instant appeal persuades the Board that it cannot decide the merits of the Veteran's reopened claim for service connection for bilateral shin splints without prejudice to the Veteran. Bernard. It is also therefore addressed further in the REMAND which follows. Bilateral hip disability Veteran claims his bilateral hip disability is secondary to his flat feet and shin splints. He testified during the October 2012 hearing on appeal that his podiatrist had explained how the various parts of the lower extremities affect each other on a functional basis. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b). Thus, establishing service connection on a secondary basis requires competent 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. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Because this claim is for secondary service connection based upon proximate causation, and because the Board has reopened and remanded the primary claims upon which this one rests, the Veteran's claim for entitlement to service connection for a bilateral hip disability will be held in abeyance until the newly-reopened claims for entitlement to service connection for flat feet and for bilateral shin splints have been resolved by the RO. ORDER The appeal for service connection for a left ankle disability is dismissed. The appeal for service connection for a left wrist disability is dismissed. Service connection for headaches is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for tinnitus is granted, subject to the laws and regulations governing the award of monetary benefits. New and material evidence having been received, the claim for service connection for flat feet is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim for service connection for bilateral shin splints is reopened; the appeal is granted to this extent only. The appeal for entitlement to service connection for a bilateral hip disability is held in abeyance pending the resolution of the claims remanded below. REMAND Because the RO has not reviewed the Veteran's new claims for service connection for flat feet or bilateral shin splints on a de novo basis, remand for such review is necessary to protect the Veteran's substantive and procedural due process rights. Bernard. In addition to the supportive medical evidence cited above, the Veteran's service treatment records also contains medical evidence which could reasonably be viewed as unsupportive of the Veteran's claims. It would appear that at the minimum, medical opinion reconciling the conflicting medical evidence is necessary prior to an adequate de novo review. With regard to the claim for shin splints, a VA examiner in July 2011 explained that by their very nature, the disability of shin splints resolves when the activity which causes them is ceased. Under the law, however, the fact that a disability resolves is not a basis for denial of service connection. The requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, the question is whether the Veteran's shin splints are related to service, not whether he has a permanent impairment involving shin splints. Additionally, as the Veteran reports continuing VA medical care, his VA medical records should be updated for the file. VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). IF there are additional private medical records the Veteran wishes the VA to consider, he should inform the RO of such records so that the VA can assist him in obtaining copies for his file. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all records of VA medical care afforded to the Veteran by the VA Medical Center in Houston, Texas, and all related clinics, subsequent to October 2012, for inclusion in the Veteran's claims file and/or his virtual VA electronic file. 2. The Veteran's claims file, including his service and National Guard treatment records, all records obtained pursuant to the above request, and any electronically-stored virtual records, should be provided to a VA physician with appropriate expertise, to determine whether it is more, less, or equally likely that any portion of his currently-shown flat feet was incurred during either his first or his second period of service, or whether it is more, less, or equally likely that the pre-existing flat feet underwent any aggravation (increase in severity beyond the natural progress of the disease) during either period of active service. The physician is also requested to identify whether the Veteran's flat feet disability improved or went into remission during the interval period between the Veteran's two periods of active service. To the extent possible, the contribution of each etiological factor toward the Veteran's current state should be quantified; i.e., if aggravation during the first period and/or second period of active service is identified, that portion of the overall disability which is due to service aggravation should be identified. The physician is also requested to render an opinion as to whether it is more, less, or equally likely that activities during the Veteran's second period of active duty caused shin splints which were shown to be present in 2011. 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. However, if the requested opinion cannot be provided without resort to speculation, the physician should so state and explain why an opinion cannot be provided without resort to speculation. IF the physician deems that additional tests or studies, or a clinical examination of the Veteran would be helpful, the RO should arrange for such tests, studies, and/or examination. 3. After the development requested above has been completed, the RO should again review the record. Any additional evidentiary development which may become apparent should be performed at this point. After the claims for service connection for flat feet and for shin splints have been adjudicated, the RO should address the outstanding claim for service connection for a bilateral hip disability, claimed as secondary to flat feet and shin splints, to include any further evidentiary development. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. The Veteran 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 or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs