Citation Nr: 1306715 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 11-32 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to extension of a temporary total convalescent rating from December 1, 2010, under 38 C.F.R. § 4.30 for a right knee fracture and degenerative joint disease. 2. Entitlement to service connection for a low back disorder, including as secondary to service-connected bilateral knee and right hip disabilities. 3. Whether there is new and material evidence to reopen a claim of entitlement to service connection for a skin disorder, also claimed as allergies, and, if so, whether service connection is warranted. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to December 1978. This appeal to the Board of Veterans' Appeals (Board/BVA) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In particular, in a June 2011 rating decision, the RO denied the Veteran's request to extend his temporary 100 percent convalescent rating under 38 C.F.R. § 4.30 for his right knee disability beyond November 30, 2010. In a March 2012 decision, the RO denied his claim of entitlement to service connection for a low back disorder and declined to reopen his previously denied claim for service connection for a skin disorder. As support for these claims, the Veteran testified at a videoconference hearing in January 2013 before the undersigned Veterans Law Judge of the Board. The Veteran submitted additional evidence during the hearing and waived his right to have the RO initially consider it as the Agency of Original Jurisdiction (AOJ). 38 C.F.R. §§ 20.800, 20.1304 (2012). A portion of his records are in the electronic ("Virtual VA") system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide claims for benefits. Because this appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Veteran has submitted evidence suggesting he is unemployable because of his service-connected disabilities. The issue of entitlement to a TDIU therefore has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2011). A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that a request for a TDIU "is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability." Rice, 22 Vet. App. at 453. See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased compensation claims apply to a TDIU claim); Mayhue v. Shinseki, 24 Vet. App. 273 (2011) (determining the Board had failed to apply 38 C.F.R § 3.156(b) when it had treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his posttraumatic stress disorder (PTSD)). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased-rating claim only when the Roberson requirements are met). But there must be cogent evidence of unemployability in the record. See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Here, this additional TDIU claim, although derivative of at least one of the claims on appeal, specifically, the one concerning the requested extension of the temporary 100 percent rating for the right knee disability, has not been adjudicated in the first instance by the RO as the AOJ. This derivative TDIU claim also requires further development before being decided, so the Board is remanding it to the RO via the Appeals Management Center (AMC). VA's Office of General Counsel has indicated that remanding the derivative TDIU claim in this circumstance does not preclude the Board from going ahead and deciding the claims for higher ratings for the disabilities forming the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). The Board also is remanding, rather than immediately deciding, the claim for service connection for a low back disorder since it, too, requires further development. But the Board instead is going ahead and deciding the claim for extension of the temporary total rating for the right knee disability under § 4.30 ("Paragraph 30") and deciding whether there is the required new and material evidence to reopen the claim for service connection for a skin disorder. The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. As of December 1, 2010, and continuing for at least the next 4 months, the Veteran was still convalescing from his right knee surgery. 2. He did not appeal a September 2009 rating decision, however, declining to reopen his claim for service connection for a skin condition. 3. And evidence received since that September 2009 rating decision, when considered with previous evidence of the record, does not relate to an unestablished fact necessary to substantiate this claim for a skin disorder and does not raise a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. The criteria are met for extension of the temporary total convalescent rating for the right knee disability beyond November 30, 2010, for the next 4 months. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R §§ 3.159, 4.30 (2012). 2. But the September 2009 rating decision denying his petition to reopen his claim for service connection for a skin condition is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.200, 20.302, 20.1103 (2012). 3. Moreover, there is not new and material evidence since that decision to reopen this claim for service connection for a skin condition. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) A. Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, also apprise him of the information and evidence VA will obtain and assist him in obtaining, and of the information and evidence he is expected to provide. 38 C.F.R. § 3.159 (2012). If the claim is for service connection, this notice also should include mention that a "downstream" disability rating and an effective date will be assigned if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Here, prior to the initial adjudication of the Veteran's claims, so in the preferred sequence, letters were sent to him in September 2010 and February 2012 in accordance with the duty-to-notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In those letters he was notified of the evidence needed to substantiate his claims and informed of the evidence VA would obtain and assist him in obtaining versus that he was expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He also was notified of the criteria for establishing a disability rating and effective date. See Dingess, supra. As specifically concerning his petition to reopen his claim for a skin condition, it was necessary to notify him both of the type of evidence that would be considered new and material, when considering the basis of the prior denial of this claim, and of the criteria for establishing his underlying entitlement to service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial). The notice letter provided to him in February 2012 included the requirements for reopening a previously denied, unappealed, claim, the criteria for establishing entitlement to service connection, and information concerning why this claim for a skin condition was previously denied. Consequently, the Board finds that adequate notice has been provided concerning this claim, as he was duly informed of the evidence necessary to substantiate the elements required to establish his entitlement to service connection that were found insufficient in the previous denial of this claim. B. Duty to Assist The Veteran's service treatment records (STRs), VA treatment records, private treatment records, VA authorized examination reports, lay statements, and hearing transcript have been associated with the claims file for consideration. With respect to his claim for an extension of benefits under 38 C.F.R. § 4.30, this VA regulation specifically states that the temporary total rating will be followed by an open rating reflecting the appropriate schedular evaluation; where the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled prior to the end of the total rating period. 38 C.F.R. § 4.30(a). In this case, there is evidence of the status of his right knee disability as of the end of November 2010, when this temporary total rating terminated, and he was afforded a VA examination for this knee a short time later, in February 2011. Accordingly, the Board finds that VA's duty to assist him in obtaining a VA examination or opinion concerning this claim has been met. 38 C.F.R. § 3.159(c)(4). Conversely, a VA examination need not be provided regarding his petition to reopen his claim for service connection for a skin condition. In the absence of new and material evidence, the duty to assist by providing him a VA examination is not triggered. See 38 U.S.C.A. § 5103A(d), (g); 38 C.F.R. § 3.159(c)(4)(iii). See also Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1353 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened); Anderson v. Brown, 9 Vet. App. 542, 546 (1996) (holding that unless the Veteran has submitted new and material evidence warranting the reopening of his claim, the duty to assist does not attach). As discussed below, the Board finds that new and material evidence has not been submitted concerning this claim, hence, no obligation to schedule a VA examination regarding this claim until there is such evidence. VA has provided the Veteran opportunity to submit evidence and argument in support of his claims. He has not made the Board aware of any additional evidence needing to be obtained prior to appellate review of these claims, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Temporary Total Rating Claim A temporary total disability rating will be assigned without regards to other provisions of the Rating Schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted for treatment of a service-connected disability. Under 38 C.F.R. § 4.30, a temporary total rating will be assigned if the hospital or outpatient treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. Extensions of one, two, or three months beyond the initial three months may be made under the above paragraphs, and extensions of one to six months beyond the initial six months may be made under paragraphs two or three with approval of the Adjudication Officer. 38 C.F.R. § 4.30(b). The Court has defined convalescence as the stage of recovery following an attack of disease, a surgical operation, or an injury. Recovery is defined as the act of regaining or returning toward a normal or healthy state. Felden v. West, 11 Vet. App. 427, 430 (1998). The Court has held that notations in the medical record as to the Veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30. Id.; Seals v. Brown, 8 Vet. App. 291, 296-297 (1995). Furthermore, the Court has noted that the term "convalescence" does not necessarily entail in-home recovery. The Veteran had surgery for his right knee in May 2010. In a July 2010 rating decision, he was awarded a temporary total evaluation for convalescence as of May 27, 2010, the date of his surgery. His previously assigned 10 percent rating was to resume on September 1, 2010. But in an October 2010 rating decision, his temporary total evaluation was extended through November 30, 2010. The 10 percent rating therefore ultimately resumed on December 1, 2010. In January 2011, he sought a further extension of his temporary total rating. His request was denied in the June 2011 rating decision on appeal. A November 2010 statement from his orthopedic surgeon indicated he was to continue physical therapy for 8 additional weeks. He was then currently unable to work and would be unable to return to construction work indefinitely. Physical examination findings show his range of motion in his right knee was from 0 degrees of extension to 125 degrees of flexion, with pain at the end range of extension. He reported being unable to walk down stairs one after the other. He was unable to walk more than 4 blocks and unable to sit for more than 30 minutes. He was concerned about his knee buckling and giving out. An additional January 2011 statement from his orthopedic surgeon again indicated he was in physical therapy and still unable to return to work. Physical examination findings from February 2011 show he had knee extension of 3 degrees and flexion of 114 degrees. He still had difficulty traversing stairs. He also had a VA examination in February 2011. Right knee extension was to 0 degrees and flexion to 114 degrees. Following repetitive testing, flexion was reduced to 112 degrees. Pain, fatigue, weakness and lack of endurance were evident. Examination of the ligaments was unremarkable. The Veteran reported using a cane to ambulate, but denied using crutches, a walker, or a wheelchair. He testified during his January 2013 hearing before the Board that he was unable to straighten out his leg, so still had significant limitation of motion of his right knee, and had switched from a large to a small brace because of the consequent atrophy of this knee and leg from not really being able to use it. He also referenced the statements from his orthopedic surgeon about the inability to return to work as clear indication the temporary 100 percent rating should have been extended beyond November 30, 2010 (for at least another 4 months). The remainder of his testimony concerned his medication and need for cortisone and lubrication shots, also the extent of his pain even now, despite his surgery. The Veteran's temporary total rating was in effect from May 27, 2010 through November 30, 2010, so for 6 months, having already been extended from its initial term. Under 38 C.F.R. § 4.30, an extension of 1 to 6 months beyond the initial 6 month period may be made under paragraphs (a)(2) or (a)(3). Paragraph (a)(2) contemplates postoperative residuals such as incompletely healed surgical wounds, stumps and recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches. Paragraph (a)(3) contemplates immobilization by cast, without surgery, of one major joint or more. This is not to say these are the only considerations, however, so not an exclusive list of what is and is not required. Moreover, the Veteran's orthopedic surgeon, so the doctor who performed his operation, has confirmed the Veteran continued to convalesce even beyond November 30, 2010, as evidenced by this doctor's indication the Veteran was unable to return to work because of his knee disability and, indeed, would be unable to for the foreseeable future. This, in part, is the reason the Board has determined there is a derivative claim of entitlement to a TDIU and, thus, is remanding this claim to the RO via the AMC. New and Material Evidence Claim The Veteran was denied service connection for a skin condition in a March 1979 rating decision. His petition to reopen this claim subsequently was denied in September 2009. He more recently filed another petition to reopen this claim in August 2011, and only then, when that petition also was denied, did he appeal to the Board. See 38 C.F.R. § 20.200 (indicating an appeal to the Board consist of a timely filed Notice of Disagreement (NOD) in writing and, after receipt of a Statement of the Case (SOC), a timely filed Substantive Appeal (VA Form 9 or equivalent statement)). A finally adjudicated claim is an application that has been allowed or disallowed by the AOJ (which, here, is the RO), the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2012). Thus, the March 1979 and September 2009 rating actions previously considering and denying this claim are final and binding determinations because the Veteran did not timely appeal either decision. This claim for entitlement to service connection for a skin condition may be reopened, however, if there is new and material evidence. Manio v. Derwinski, 1 Vet. App. 140 (1991). New 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 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) (2012). Only evidence presented since the last final and binding denial on any basis will be considered in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). So, here, the starting point for determining whether there is new and material evidence is the September 2009 decision since that is the last final and binding denial of this claim. In determining whether evidence is new and material, the credibility of the evidence in question is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). This presumption only applies when making this determination of whether the evidence is new and material, however. It does not also apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim. So, essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits. See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). VA adjudicators also do not have to blindly accept, as credible, assertions that are beyond the competence of the person making them. In determining whether new and material evidence has been received to reopen a claim, the Court has indicated there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id., at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id., at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). Thus, in deciding whether a claim should be reopened, the reason for the prior denial of the claim should be considered, but is not controlling of whether there is new and material evidence since. Here, in essence, at the time of the prior denial of this claim for a skin disorder, the evidence of record indicated the Veteran had a then current diagnosis of psoriasis, so a skin disorder, but did not suggest this disorder was incurred in or otherwise related to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Since the prior final and binding decision denying this claim, actually, a prior petition to reopen this claim, additional evidence has been added to the claims file. VA and private treatment records show ongoing complaints and treatment for psoriasis. In December 2008, the Veteran reported having rashes since 1976, so since his military service. He also testified at a hearing in January 2013 before the Board. He said he had his first outbreak during his military service, during advanced individual training (AIT) in 1975. He added that he was hospitalized in service and subsequently treated with creams and other topical medications, and that these outbreaks have persisted during the many years since, so even until today. He also pointed to visible eczema on his arm at the time of the hearing as evidence he continues to experience the effects of his skin disorder. Unfortunately, however, this recently submitted evidence is not new and material to his claim for a skin disorder. The diagnosis of psoriasis, as well as his statements regarding being treated in service and having continuous symptoms since service, were already considered by the RO in the prior rating decisions denying this claim. See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). He has not submitted any new evidence, that is, other than his lay assertions previously made, tending to show he had a skin condition in service and has continued to during the many years since or otherwise relating his current psoriasis to his service. Therefore, his petition to reopen this previously denied claim for service connection for a skin condition must be denied. See Untalan v. Nicholson, 20 Vet. App. 467 (2006) (New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence.). Furthermore, inasmuch as he has not fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER The temporary total convalescent rating is extended for 4 months beyond November 30, 2010, subject to the statutes and regulations governing the payment of VA compensation. But as there is not new and material evidence, the petition to reopen the previously denied, unappealed, claim for service connection for a skin condition is denied. REMAND As concerning his low back disorder, the Veteran contends it is secondary to his service-connected bilateral knee and right hip disabilities. So this claim is predicated on the notion that his low back disorder is proximately due to, the result of, or being aggravated by these service-connected disabilities. 38 C.F.R. § 3.310 (a) and (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is usually, though not always, required to associate a claimed condition with a service-connected disability or disabilities. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997); and McQueen v. West, 13 Vet. App. 237 (1999). Effective October 10, 2006, so prior to receipt of the Veteran's August 2011 claim, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995), regarding secondary service connection on the basis of the aggravation of a nonservice-connected disorder by a service-connected disability. See 71 Fed. Reg. 52744 (2006). 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. Notably, this amendment to 38 C.F.R. § 3.310 provides, in pertinent part, that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b) (2012). Thus, when there is aggravation, the Veteran is only compensated for the additional disability he has as a result or consequence of the aggravation, that is, only for the disability over and above what he had before the aggravation. To assist in determining whether there is a relationship or correlation between his low back disorder and service-connected bilateral knee and right hip disabilities, the Veteran was provided a VA examination in February 2011. The examiner diagnosed an L3 vertebral body compression fracture, so confirmed the Veteran has a low back disorder. However, this examiner concluded this condition was less likely than not proximately due to or the result of the Veteran's service-connected conditions. He explained that, while the Veteran's right hip and knee conditions could cause lumbar strain, they are not a cause of lumbar compression fractures. The Veteran had osteopenia, which, according to this examiner, was the most likely cause of the fractured vertebral body. Unfortunately, though, the examiner did not also address whether the Veteran's low back condition is being aggravated by his service-connected disabilities. See 38 C.F.R. § 3.310(b) (2012). Two opinions, not just one, are required for secondary service connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connection condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen, 7 Vet. App. at 449; 38 C.F.R. § 3.310(b). This claim, therefore, must be remanded for a supplemental opinion specifically addressing this additional question of aggravation. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate). The derivative TDIU claim that has been raised by the record also needs to be adjudicated. See again Rice, etc. Accordingly, these claims are REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The claims file, including a copy of this remand, must be forwarded to the examiner that performed the February 2011 VA spine examination. This examiner is asked to additionally comment on the likelihood (very likely, as likely as not, or unlikely) the Veteran's service-connected bilateral knee and right hip disabilities, even if not causing, are aggravating his diagnosed L3 vertebral body compression fracture. The examiner previously commented on causation, indicating there is no such cause-and-effect correlation between these service-connected disabilities and the low back disorder, but did not also comment on aggravation, hence, the reason the Board needs this supplemental medical opinion since this, too, is a basis for establishing entitlement to secondary service connection. 38 C.F.R. § 3.303(b). It is imperative the examiner, like previously, discuss the underlying medical rationale of the opinion, if necessary citing to specific evidence in the file supporting the opinion. If an opinion cannot be expressed without resorting to mere speculation, the examiner must discuss why this is the case. That is, he must indicate whether the inability to provide a definitive opinion is because he needs for more information or because the limits of medical knowledge have been exhausted or because of some other reason. So merely saying he cannot comment will not suffice. The term "as likely as not" does not mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The term "aggravated" refers to a chronic or permanent worsening of the underlying condition, as contrasted with mere temporary or intermittent flare-ups of symptoms that resolve and return to the baseline level of disability. This requested opinion on aggravation therefore should be premised on the baseline level of severity of the low back disorder before considering whether the service-connected bilateral knee and right hip disabilities have chronically worsened the low back disorder above and beyond that. If, for whatever reason, the February 2011 VA examiner is unavailable to provide this further comment, then have someone else provide it that is qualified to make this necessary determination. In this eventuality, it may require having the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, this additional opinion can be provided with just review of the file. 2. Ensure this supplemental opinion, whoever provides it, addresses the issue of aggravation (not just causation, as it did in February 2011). If not, return the report for this necessary additional comment. 38 C.F.R. § 4.2 (2012). 3. Then readjudicate this claim of entitlement to service connection for a low back disorder in light of this and all other additional evidence. Also adjudicate the claim for a TDIU that has been raised by the record. If these claims are not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs