Citation Nr: 1308181 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 09-08 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder. 2. Entitlement to an increased rating in excess of 20 percent for varicose veins of the right lower extremity. 3. Entitlement to an increased rating in excess of 20 percent for varicose veins of the left lower extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from December 1965 to September 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal of a February 2008 and October 2009 rating decisions of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of service connection for an acquired 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. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'd 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the veteran's claim of service connection for an acquired psychiatric disorder accordingly. FINDINGS OF FACT 1. Service connection for an acquired psychiatric disorder was denied by the RO in an April 1974 rating action on the basis that no psychiatric disorder was noted on the last examination of record, the examination for separation from service. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 2. Since the April 1974 decision denying service connection for an acquired psychiatric disorder, the additional evidence, not previously considered, is related to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. Throughout the appeal, the varicose veins of the Veteran's right lower extremity were primarily manifested by mild palpable varicose veins in the upper medial calf, moderate varicosities behind the knee, and mild varicose veins in the medial thigh, extending to the groin, significant pain, and edema that is not shown to be persistent; without a demonstration of persistent edema, stasis pigmentation, or eczema. 4. Throughout the appeal, the varicose veins of the Veteran's left lower extremity were primarily manifested by visibly tortuous and palpable varicose veins in the medial calf; palpable varicose veins behind the knee; and palpable varicose veins in the medial thigh extending to the groin, significant pain, and edema that is not shown to be persistent; without a demonstration of persistent edema, stasis pigmentation, or eczema. CONCLUSIONS OF LAW 1. The additional evidence received subsequent to the April 1974 decision of the RO that denied service connection for an acquired psychiatric disorder is new and material; thus, service connection for this disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for an increased rating in excess of 20 percent for varicose veins of the right lower extremity were not met at any time during the appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code (Code) 7120 (2012). 3. The criteria for an increased rating in excess of 20 percent for varicose veins of the left lower extremity were not met at any time during the appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code (Code) 7120 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of the claims. January and April 2007 letters explained the evidence necessary to substantiate the claim for service connection for an acquired psychiatric disorder. The April 2007 letter provided notice in accordance with Kent. A July 2009 letter explained the evidence necessary to substantiate the claims for increased ratings. All the letters provided the Veteran with notice of the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letters also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records, including records utilized by the Social Security Administration (SSA) have been secured. Medical records available through Virtual VA have also been reviewed, after the Veteran's representative waived consideration of these records by the RO. The Veteran has also been afforded a VA medical examination in connection with the claim, most recently in August 2009. 38 C.F.R. § 3.159I (4) (2012). The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the Veteran has challenged the adequacy of the examination obtained, his disagreement relates to discrepancies in the description of the Veteran's persistent pain. After taking the Veteran's lay statements into account, the Board has discounted the examiners comments related to pain so that an additional examination is not found to be necessary. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159I(4) (2012). Service Connection Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 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 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative 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(b) (West 2002); 38 C.F.R. § 3.102 (2011). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Reopening Service Connection for an Acquired Psychiatric Disorder Service connection for an acquired psychiatric disorder was previously denied by the RO in an April 1974 rating decision on the basis that no psychiatric disorder was noted on the last examination of record, the examination for separation from service. The Veteran did not appeal this determination. In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may now be reopened. 38 U.S.C.A. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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 ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence of record at the time of the April 1974 rating decision that denied service connection for a psychiatric disorder included the Veteran's STRs that showed that the Veteran had complaints of nervousness at the time he was examined for entry into active duty, with psychiatric clinical evaluation normal. During service, in April and May 1966, the Veteran was seen for complaints of being nervous and depressed. Mental health clinic evaluation found no evidence of clinical depression or suicidal ideation, just manipulation. On examination for separation from active duty, the Veteran reported having or having had nervous trouble of any sort, with psychiatric clinical evaluation normal. Also of record was a report of hospitalization at a VA facility in January and February 1974 when the Veteran was diagnosed with alcohol addiction and a suspected personality disorder. The evidence did not include a confirmed diagnosis of an acquired psychiatric disorder. Evidence received subsequent to the April 1974 rating decision includes VA outpatient treatment records showing diagnoses of anxiety, depression, and pain disorder associated with both psychological factors and a general medical condition. These records show that the Veteran has now been diagnosed as having an acquired psychiatric disorder. As noted, for the purpose of determining whether evidence is new and material to reopen a claim, the credibility of the evidence is to be presumed. Justus, 3 Vet. App. at 510. As such, the Board finds the outpatient treatment records constitute new and material evidence such that the claim may be reopened. To this extent, the appeal is allowed. Rating Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When there is an approximate balance of positive and negative 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(b); 38 C.F.R. §§ 3.102, 4.3 (2012). The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Rating Varicose Veins Service connection for varicose veins of each lower extremity was granted by the RO in an April 1974 rating decision. A zero percent initial disability rating was awarded under the provisions of Code 7120 that were effective prior to January 1998. By rating decision dated in May 1992 the rating was increased to 30 percent for bilateral varicose veins under the provisions of Code 7120, effective prior to January 1998. The ratings were increased to 20 percent for each lower extremity by rating decision dated in December 1999 under the revised provisions of Code 7120 that became effective in January 1998. The 20 percent ratings for each lower extremity have been in effect since that action. The Veteran contends that his varicose veins are more disabling than currently evaluated. It is asserted that he has constant and unremitting pain that he describes as a constant toothache. He stated that compression hose is not helpful in any way. He stated that it has completely changed his lifestyle. An examination was conducted by VA in August 2009. At that time, the Veteran's history of varicose veins during service, status post vein stripping, was reviewed. His current complaints were of cramping pain in the right calf after standing for more than several minutes or walking more than 20 yards. Varicose veins were noted in both lower extremities. Edema was present, but it was not described as persistent. Elevation, compression hosiery, and rest reportedly partially relieved the edema. The Veteran had complaints of pain that was always present and occurred at rest, on prolonged walking, and standing. He described it as aching, throbbing, and a heavy feeling. The pain was not relieved by elevation or compression hosiery. There were no complaints of discoloration of the skin and no ulcerations were present. On examination there was edema present that was not massive or board-like. There was no stasis pigmentation, eczema or ulceration. In the right lower extremity, the Veteran's varicose veins were described as mild and palpable in the upper medial calf; moderate behind the knee; and mild, visible and palpable in the medal thigh extending into the groin. On the left they were described as visibly tortuous and palpable in the medial calf; palpable behind the knee; and palpable in the medial thigh extending to the groin. Additionally, it was noted that the Veteran had loss of hair over the distal calves, strong pedal pulses, and telangiectasies present superior to the medial malleolus in each leg. Doppler studies of the right lower extremity performed the previous June revealed no evidence of deep vein thrombosis or superficial thrombophlebitis. Venous valvular insufficiency was noted in the superior femoral and popliteal veins and in the lesser saphenous vein. The diagnosis was chronic venous insufficiency of the right lower extremity, with lower leg muscle cramping and varicose veins of both lower extremities. The examiner further commented that the Veteran's leg pain and cramping was not the result of radiculopathy from the Veteran's non-service-connected low back disability, as had previously been believed. VA outpatient treatment records through September 2012 include references to the Veteran's varicose veins. In February and December 2011 the Veteran's varicose veins were described as stable. In October 2011, no erythema or discoloration was found on examination. Varicose veins, with intermittent edema of an extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery, a 10 percent rating is warranted. With persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema, warrants a 20 percent rating. Varicose veins, with persistent edema and stasis pigmentation or eczema, with or without intermittent ulcerations, will be rated as 40 percent disabling. With persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration will be rated as 60 percent disabling. These evaluations are for involvement of a single extremity. If more than one extremity is involved, each extremity is to be evaluated separately and combined. 38 C.F.R. § 4.104, Code 7120. The varicose veins of the Veteran's right lower extremity are described as mild and palpable in the upper medial calf; moderate behind the knee; and mild, visible and palpable in the medal thigh extending into the groin. The Veteran has complaints of persistent aching pain and edema that is not shown to be persistent. There was no evidence of stasis dermatitis or eczema as a result of varicose veins. For a schedular rating in excess of the currently awarded 20 percent, persistent edema and stasis pigmentation or eczema must be demonstrated. Although he has significant aching pain, this symptom is already rated as part of his 20 percent rating, and is, in fact a basis for a lower, 10 percent evaluation. Absent a demonstration of persistent edema, stasis dermatitis or eczema, a rating in excess of 20 percent for varicose veins of the right lower extremity are not warranted. The varicose veins of the Veteran's left lower extremity are described as visibly tortuous and palpable in the medial calf; palpable behind the knee; and palpable in the medial thigh extending to the groin. The Veteran has complaints of persistent aching pain and edema that is not shown to be persistent. There was no evidence of stasis dermatitis or eczema as a result of varicose veins. As with the right lower extremity, for a schedular rating in excess of the currently awarded 20 percent, persistent edema and stasis pigmentation or eczema must be demonstrated. As with the right, the Veteran's significant aching pain is already rated as part of his 20 percent rating. Absent a demonstration of persistent edema, stasis dermatitis or eczema, a rating in excess of 20 percent for varicose veins of the right lower extremity are not warranted. The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2009); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's bilateral varicose vein symptoms directly correspond to the schedular criteria for the 20 percent evaluation. For this reason, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's bilateral varicose vein disabilities, and no referral for an extraschedular rating is required. Finally, while the Veteran is not shown to be currently employed, his service-connected disabilities combine to a 60 percent rating and do not meet the schedular criteria for consideration of a total disability rating by reason of individual unemployability. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Neither does the Veteran or the evidence suggest that the Veteran is unemployable by reason of his service-connected disabilities, but that he is retired. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the Veteran or the evidence of record at the present time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER New and material evidence having been received, the claim of service connection for an acquired psychiatric disorder is reopened. A rating in excess of 20 percent for varicose veins of the right lower extremity is denied. A rating in excess of 20 percent for varicose veins of the left lower extremity is denied. REMAND As noted, the claim of service connection for an acquired psychiatric disorder has been reopened and must now be considered on a de novo basis. Review of the record shows that on February 2009 VA examination the Veteran was diagnosed with pain disorder associated with both psychological factors and general medical condition. An opinion was rendered that this was not related to the anxiety and depression that the Veteran complained of while in service. The rationale was that the Veteran had indicated that he had pre-existing anxiety prior to entering service, but, as the Veteran's representative has pointed out, there was no discussion of whether the Veteran's disorder clearly and unmistakably pre-existed service and whether there was an increase in the Veteran's disability beyond the natural progress of the disease. The Veteran's representative has requested that the case be remanded to investigate this possibility. It is further noted by the Board that the Veteran has manifested significant pain as a result of his service-connected bilateral varicose veins. The diagnosis from the February 2009 VA examination was that the Veteran had a disorder related to pain, but there was no opinion rendered regarding whether the pain associated with the service-connected varicose veins could have caused, or aggravated his psychiatric disability. Such an opinion is believed to be necessary prior to final appellate consideration. Accordingly, the issue of service connection for an acquired psychiatric disorder is REMANDED for the following action: 1. The RO/AMC should arrange for the Veteran to undergo a VA mental disorders examination to ascertain the current nature and etiology any psychiatric disability. If possible, the RO/AMC should have the VA examiner that evaluated the Veteran in February 2009. After a review of the documents, history, and examination of the Veteran, the examiner should be requested to render the following opinions: a. Whether there is clear and unmistakable evidence any acquired psychiatric disorder existed prior to the Veteran's period of active military service. If it did, then this examiner must then also indicate whether there is clear and unmistakable evidence the disability was not aggravated during or by the Veteran's military service beyond natural progression. "Clear and unmistakable evidence" means with a much higher certainty than "at least as likely as not" or "more likely than not". If both prongs of this rebuttable standard are not satisfied by the required finding of clear and unmistakable evidence, the VA examiner should alternatively render opinions regarding: b. Is it at least as likely as not (probability 50 percent of more) that any acquired psychiatric disability is caused by any of the Veteran's service-connected disabilities? c. Is it at least as likely as not (probability 50 percent of more) that any acquired psychiatric disability is aggravated (permanently worsened in severity) by any service-connected disability? The examiner should be requested to specifically discuss the Veteran's contentions related to the etiology of his depression. If, for whatever reason, this same examiner is no longer available to provide these additional opinions, then another VA examiner should be requested to make the determinations. This may require having the Veteran reexamined, which is left to the commenting examiner's discretion. All necessary diagnostic testing and evaluation needed to make these determinations should be performed. The designated examiner must review the claims folder for the Veteran's pertinent medical and other history. The examiner must provide clear rationale for his or her opinion with references to the evidence of record and must provide a discussion of the facts and medical principles involved. 2. Thereafter, the RO/AMC should readjudicate the issue of service connection for an acquired psychiatric disorder (including as secondary to service-connected disabilities). If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs