Citation Nr: 1307328 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 06-09 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for sexual dysfunction , to include erectile dysfunction (also referred to herein simply as "erectile dysfunction" or "ED"), to include as secondary to service connected low back and cervical spine disabilities. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected low back and cervical spine disabilities. 3. Entitlement to service connection for headaches (to include occipital and migraine type headaches), to include as secondary to service connected low back, cervical spine disabilities and anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from July to October 1986 and from January 1994 to January 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By that rating action, the RO denied the Veteran's claims for service connection for sexual dysfunction, sleep apnea and migraine headaches. The Veteran appealed this rating action to the Board. In July 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the above-cited RO. A transcript of the hearing is of record. Subsequent to the hearing, the Veteran submitted additional evidence, including a CD-ROM of X-ray studies of his back undertaken in November 2007. His representative provided a signed waiver of initial RO consideration of these new documents. The Board accepts this additional evidence for inclusion in the record. See 38 C.F.R. § 20.800 (2012). In September 2012, the Board remanded the claims on appeal for additional substantive development. Specifically, to have VA examine the Veteran to determine the etiology of his claimed sexual dysfunction, sleep apnea and headaches. VA examinations were conducted in November 2012. Copies of the examination reports have been associated with the claims files. Thus, the requested development has been completed and the appeal is ready for appellate consideration. In addition, in January 2013, the Board received additional VA treatment records, dated in November 2012, and statements of the Veteran, along with a waiver of initial RO consideration of this evidence. (See Veteran's and his representative's statements, received by the Board in January 2013). Thus, a remand to have the RO initially consider this evidence is not necessary in this instance. 38 C.F.R. § 20.1304 (2012). Also on appeal from the RO's March 2004 rating action was the issue of entitlement to service connection for an acquired psychiatric disorder. By a December 2012 rating action, the RO granted service connection for an anxiety disorder; an initial 50 percent evaluation was assigned, effective August 4, 2003 - the date VA received the Veteran's initial claim for compensation for this disability. As the Veteran has not disagreed with the initial 50 percent evaluation or the effective date of August 4, 2003, this issue is no longer before the Board for appellate consideration. Grantham v. Brown, 114 F. 3d 1156 (Fed. Cir. 1997). The issue of entitlement to service connection for headaches (to include occipital and migraine type headaches), to include as to include as secondary to service connected low back and cervical spine disabilities and anxiety disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence is in equipoise regarding whether the Veteran's erectile dysfunction was caused by his service-connected low back disability. 2. The evidence of record reflects that the Veteran's currently diagnosed obstructive sleep apnea (OSA) did not have its onset during military service and is not otherwise etiologically related thereto, nor has it been caused or aggravated by the service-connected low back and cervical spine disabilities. CONCLUSIONS OF LAW 1. The criteria to establish service connection for erectile dysfunction, to include as secondary to the service-connected lumbar spine disability, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 2. The criteria to establish service connection for sleep apnea, to include as secondary to the service-connected low back and cervical spine disabilities, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCCA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011) requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the information and evidence necessary to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will attempt to provide; and (3) that the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) the degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The United States Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. However, in Shinseki v. Sanders, 129 S.Ct. 1696 (2009), the United States Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. By a letter dated in November 2003, the Veteran was notified of the information and evidence necessary to substantiate the claim for service connection for sleep apnea. VA told the Veteran what information he needed to provide, and what information and evidence that VA would attempt to obtain. Under these circumstances, the Board finds that VA has satisfied the requirements of the VCAA. VA satisfied the notice requirements under Dingess in a March 2006 letter, wherein VA informed the Veteran as to the type of evidence necessary to establish a disability rating or effective date. Adequate notice has been provided to the Veteran prior to the transfer and certification of his case to the Board, and thus, compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) have been met. The duty to assist also has been fulfilled as the Veteran's available service treatment records (STRs) and VA and private medical records have been requested and obtained. The Board has also reviewed the Veteran's Veteran's VA file, which included, VA treatment records, dated from July to October 2012, which are not located in the physical claims files but were addressed in a December 2012 Supplemental Statement of the Case. (See December 2012 Supplemental Statement of the Case, page (pg.) 1)). No outstanding evidence with respect to the issue of entitlement to service connection for sleep apnea, to include as secondary to the service-connected low back and cervical spine disabilities, has been indentified that has not otherwise been obtained. The Board notes that VA attempted to obtain private and VA medical records. In October 2012 and pursuant to the Board's September 2012 remand directives, the RO sent the Veteran a letter wherein it requested, in part, that he identify any private physicians whose records he would like VA to obtain in support of his claims. The letter included the necessary authorization forms that would enable VA to obtain records from the identified private physicians. The Veteran did not respond to the RO's October 2012 letter. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board finds that the available medical evidence is sufficient for an adequate determination of the Veteran's claim for service connection for sleep apnea. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims would not cause any prejudice to the Veteran. In addition, in November 2012, VA examined the Veteran to determine the current etiology of his sleep apnea. Copies of these VA examination reports are contained in the claims files. These examination reports are adequate and probative for VA purposes because the examiners relied on sufficient facts and data, provided a rationale for their respective opinions, and there is no reason to believe that the examiners did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given the foregoing, the Board finds that the RO has substantially complied with the Board's September 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board finds that there is no further assistance that would be reasonably likely to substantiate the claims for service connection for sleep apnea. The Board further finds that the Veteran has been accorded appropriate due process and he, along with his spouse, have presented written arguments in various documents submitted to VA in support of the above-cited claims. In addition, the Veteran provided testimony before the undersigned in July 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the July 2012 hearing, the undersigned Veterans Law Judge identified service connection for sleep apnea as an issue on appeal. Transcript (T.) pg. 2). Also, information was solicited regarding the nature of his argument with respect to these claims. The Veterans Law Judge clarified the evidence necessary to establish entitlement to service connection for sleep apnea. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the above-cited service connection claims based on the current record. II. Legal Criteria Service connection means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Generally, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service- connected disability and that compensation can be paid for any additional impairment resulting from the service- connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen. 38 C.F.R. 3.310 (2012). The amended 38 C.F.R. § 3.310 limits service connection on the basis of aggravation to those situations in which medical evidence created prior to the alleged aggravation establishes a baseline for the disability prior to aggravation. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 f.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. II. Legal Analysis The Veteran seeks service connection for erectile dysfunction and sleep apnea. He contends that his erectile dysfunction is related to pain from his service-connected low back and neck disabilities. (T. at pg. 11). He maintains that his sleep apnea had its onset during active service and that he has continued to have sleeping problems since discharge. (T. at 17). The Board will discuss each disorder separately in its analysis below. (i) Erectile Dysfunction The Veteran contends that his erectile dysfunction is related to pain from his service-connected low back and neck disabilities. The Veteran's STRs are wholly devoid of any subjective complaints of sexual problems or clinical findings of sexual dysfunction, such as erectile dysfunction. (Parenthetically, the Board observes that a June 1995 report contains an assessment of "prob prostatitis" (Chlamydia)). A July 1995 Medical Evaluation Board report reflects that the Veteran's genitourinary system was evaluated as "normal." Voluminous post-service VA and private treatment reports reflects that the Veteran has been diagnosed as having ED. (See November 2012 VA Male Reproductive System VA examination report). Thus, the crux of the Veteran's claim for service connection for ED is whether there is competent and credible lay and/or medical evidence linking this disability to military service or to the service-connected lumbar spine disability. There are private and VA opinions that address this question that are supportive of and against the claim, respectively. Evidence in support of the claim includes a November 2003 report, prepared by J. H. W.. Dr. J. W. noted that another private physician, Dr. S. of Piedmont Urology Group, had treated the Veteran for ED, which he felt was secondary to his lumbar pathology. The Board finds this opinion to be of limited probative value as it lack was any significant rationale or reasoning Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion depends upon whether it is factually accurate, fully articulated, and contains sound reasoning for the conclusion, not the mere fact that the claims file was reviewed);see also Gardin v. Shinseki, 613 F.3d 1374 (2010) (observing that in accordance with Nieves- Rodriguez, the Board is prohibited from discounting a private physician's report merely because the opining physician did not review the Veteran's medical service record). Thus, the Board finds the statement that the Veteran's ED was secondary to his lumbar pathology to be of limited probative value as to the question of etiology of the Veteran's diagnosed ED. The Board observes that an April 2004 VA Fee basis spine examination report contains a notation in the history section of the report that sexual dysfunction was one of the functional impairments of the Veteran's cervical spine and low back disabilities. However, no diagnosis or medical opinion as to the etiology of the Veteran's ED was provided. Thus, the Board also finds the April 2004 VA examination report not particularly probative as to the question of etiology of the Veteran's diagnosed ED. (See April 2004 VA Fee Basis Spine examination report). In light of the limited probative value of the evidence of record, VA solicited an opinion as to the question of whether the Veteran's ED was related to the service connected spine disabilities. The record includes a November 2012 VA examiner's opinion. The VA examiner reviewed the claims files, to include an absence of urinary complaints and clinical findings of any sexual problems in the Veteran's STRs, and the post-service VA and private treatment records. The VA examiner specifically noted the above-cited November 2003 report, which included the positive nexus opinion between the Veteran's ED and his low back pathology, as well as a July 2003 electromyography report (EMG) report of the lumbar spine. The July 2003 EMG report showed lumbar radiculopathy at L3 due to an acute work injury and old, chronic findings of L4 radicular symptoms. (See July 2003 EMG and Nerve Conduction Study report, prepared by Rehab Orthopedic Medicine). The November 2012 VA examiner opined that the Veteran's ED was less likely as not related to his military service because there was no evidence of ED until 2003, when he sustained a work-related lumbar spine injury. The VA examiner noted that the Veteran had attributed his ED to a multitude of factors, one of which included lumbar area pain. The VA examiner concluded that the Veteran's ED was not related to nor had it been permanently aggravated by his service-connected low back and cervical spine disabilities. The VA examiner's rationale was as follows: The Veteran's c-file is silent for treatment of ED, or other urinary dysfunction problems. First mention is noted is notes in 2003 after a work related injury occurring 7 years after the Veteran's military discharge. EMG study performed in July 2003 showed lumbar radiculopathy of the L3 due to acute work related injury, and old, chronic findings of L4 radicular sx. Neither of these findings are specific to the [V]eteran's reports of erectile dysfunction, a radiculopathy of the S2, S3, S4 lumbar area. The Board finds the November 2012 VA examiner's opinion to be confusing and internally contradictory, for several reasons. The opinion suggests that the Veteran's ED could be attributed to the lumbar spine if there was S2-4 radiculopathy rather than L3 or L4. The examiner nonetheless indicates that the cause of the Veteran's ED was the 2003 post-service work-related injury, which affected L3 rather than the S2-4 area. The contradictory nature of this opinion makes it inadequate and of limited probative value. The Board notes that at the time of the 2003 low back work injury, service connection had already been established for a low back disability. In fact, after the 2003 work-related injury to the lumbar spine, the service-connected low back injury was increased from 20 to 40 percent disabling, effective from February 2009. Thus, it appears that the 2003 work-related injury increased the trajectory of the service-connected low back pathology. Therefore, as the November 2012 VA examiner seemed to suggest that the Veteran's ED had its onset after the post-service 2003 injury to the low back, and the Board cannot separate the work-related low back pathology from the service-connected low back pathology, it will resolve reasonable doubt and grant service connection for ED as secondary to the service-connected lumbosacral spine disability. Accordingly, service connection for ED as secondary to the service-connected low back disability is granted. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. (ii) Sleep Apnea As noted above, the Veteran contends that his sleep apnea had its onset during his period of military service and that he has continued to have sleep-related problems since discharge. The Board finds that the preponderance of the competent and probative evidence of record is against the claim for service connection for sleep apnea, to include on a secondary basis because the medical evidence is against a nexus of any of the above-cited disorder to military service or to the service-connected low back and cervical spine disabilities. The Veteran's STRs are wholly devoid of any sleeping problems. A July 1995 Medical Evaluation Board report reflects that all of the Veteran's systems were evaluated as "normal" with the exception of three (3) scars. On a July 1995 Report of Medical History, the Veteran denied having had frequent trouble with sleeping. Voluminous post-service VA and private treatment reports reflects that the Veteran has been diagnosed as having OSA. (See November 2012 VA OSA examination report). Thus, the crux of the Veteran's claim is whether there is competent and credible evidence linking this disability to military service or to the service-connected low back and cervical spine disabilities. There is one (1) opinion that addresses this question and it is against the claim. VA examined the Veteran in November 2012 to determine the etiology of his sleep apnea. At that examination, the Veteran indicated that he had had sleeping problems since 1996. The VA examiner noted that the first clinical evidence of any OSA was in 2005. (see February 2005 report, prepared by Sleep Disorders Centers of Georgia). The VA examiner concluded that the Veteran's sleep apnea was not incurred in or caused by military service, and was not secondary to nor had it been aggravated (permanently worsened) by any service-connected disability. The VA examiner noted that the Veteran's OSA had its onset in 2005, which was nine (9) years after service discharge, and that his STRs were wholly silent for report of any sleeping difficulty or report of daytime sleepiness. The VA examiner reasoned that OSA was caused by factors, such as obesity (main factor) and sometimes hereditary factors of the craniofacial structure, which reduce the size of upper airway support structures due to increased soft tissue relaxation or increased airway resistance. The VA examiner indicated that OSA was seen more with increasing age up to the mid 60s, where there is "a plateau." Overall, the VA examiner concluded that there was no data that provided any significant evidence of increased incidence of OSA in individuals with intervertebral disc syndrome. The Board finds the November 2012 VA PA's opinion to be highly probative evidence. Nieves- Rodriguez v. Peake, supra. There is no other medical opinion, private or VA, which refutes the above-cited VA examiner's conclusion and that is supportive of the Veteran's claim for service connection for sleep apnea. III. Conclusion Finally, the Board finds that the Veteran's statements throughout the appeal that his currently diagnosed OSA had its onset during military service are not credible because there is no evidence of this disorder during military service. See 38 U.S.C.A. § 1154(a) (West 2002) (in each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence). Indeed, the Veteran's statements, as well as those of his spouse, are contradicted by the STRS, which are, wholly devoid of any complaints or clinical findings relating to sleeping problems. The Veteran's July 1995 Medical Evaluation Board physical examination and questionnaire are particularly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran's contention that his OSA was caused by his service-connected low back and cervical spine disabilities is not competent evidence. While the Veteran is competent to report his symptoms and medical history, he is plainly not qualified to opine with regard to the etiology of this disability, and in any case his opinion is contradicted by a qualified medical examiner. Jandreau v. Nicholson, 492 F.3d 1372 (2007). ORDER Entitlement to a service connection for erectile dysfunction is granted. Service connection for sleep apnea, to include as secondary to service-connected low back and cervical spine disabilities is denied. REMAND The issue of entitlement to service connection for headaches (to include occipital and migraine-type headaches), to include as secondary to service-connected low back and cervical spine disabilities and anxiety disorder must be remanded. Although the Board sincerely regrets the delay this will cause, adjudication cannot proceed without further development. Specifically, to obtain a medical examination and opinion as to the etiological relationship between the Veteran's service-connected anxiety disorder and his headaches, currently diagnosed as tension headaches. Pursuant to the Board's September 2012 remand directives, VA examined the Veteran to determine the etiology of his headaches in November 2012. After a claims file review and physical evaluation of the Veteran, the VA examiner concluded that the Veteran's headaches were less likely as not secondary to or aggravated by his service-connected cervical disease or intervertebral disc syndrome. The VA examiner's rationale was that the Veteran had only complained of headaches on four (4) occasions during the previous 15 years with only one containing a reference of a headache due to back pain. The VA examiner also acknowledged that the Veteran had reported having increased anxiety due to his back pain, which, in turn, had caused his headaches. Thus, the Veteran argued, in essence, that his psychiatric disorder had caused his headaches. The VA examiner reported that the relationship between the Veteran's anxiety disorder to his headaches would be addressed by a mental health clinician. (See November 2012 VA headaches examination report). In late November 2012, a VA clinical psychologist examined the Veteran to determine the etiology of any currently present acquired psychiatric disorder. After a review of the claims file and mental status evaluation of the Veteran, the VA psychologist concluded that the Veteran's anxiety disorder was at least as likely as not related to injuries he sustained during an in-service motor vehicle accident. The VA psychologist, however, did not provide an opinion as to whether any currently diagnosed anxiety disorder had caused or aggravated the Veteran's headaches, as indicated by the VA examiner (See November 2012 VA mental health examination report). As a result of the November 2012 VA psychologist's favorable opinion, the RO awarded service connection for an anxiety disorder. (See December 2012 rating action). Thus, because service connection has been established for an anxiety disorder and the Veteran has maintained that his headaches are secondary thereto, the Board finds that a supplemental opinion by an appropriate examiner that addresses the etiological relationship between these two disabilities, as specifically indicated by the November 2012 VA examiner, is necessary prior to further appellate review of the claim. Accordingly, the case is REMANDED for the following action: 1. Request a supplemental opinion from an examiner of appropriate expertise to determine the etiological relationship between the Veteran's headaches, most recently diagnosed as tension headaches, and his service-connected anxiety disorder, with the option for an additional examination. a. The claims files and a copy of this remand, will be reviewed by the reviewing clinician. The reviewing clinician must acknowledge receipt and review of the claims files and a copy of this remand. The reviewing clinician must provide opinions to the following question: Is it at least as likely as not (i.e., 50 percent or better probability) that the Veteran's headaches, most recently diagnosed by VA as tension headaches, has been caused or aggravated (made permanently worse) by the service-connected anxiety disorder? If such aggravation is found to exist, the examiner should provide an assessment, if possible, of the baseline level of impairment of the headaches prior to aggravation, and then provide quantification, if possible, of the level of additional impairment above and beyond this baseline level by the service-connected anxiety disorder. b. In reaching all conclusions, the reviewer, must identify and explain the medical basis or bases for his or her conclusions, with identification of the evidence of record relied upon in reaching the conclusions. c. If an opinion cannot be expressed without resort to speculation, the reviewer must discuss why such is the case and whether there is additional evidence that would aid in providing the requested opinions. 2. After the development requested has been completed, the AMC/RO should review the reviewer's report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the reviewer has documented his or her review of all pertinent records in the claims files, to include any records uploaded to Virtual VA. If any report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 3. Finally, the AMC/RO must readjudicate the issue of entitlement to service connection for headaches, to include as secondary to the service-connected bilateral low back and cervical spine disabilities and anxiety disorder. If the benefit sought is not granted, the Veteran and his representative shall be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs