Citation Nr: 1308980 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-00 155A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service connected diabetes mellitus. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service connected diabetes mellitus. 3. Entitlement to service connection for radiculopathy/neuropathy of the lower extremities, to include as secondary to a service connected disability. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a thoracic spine disability. 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hepatitis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to March 1971, from October 1982 to September 1985, and from April 1986 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. On September 17, 2012, the Veteran testified at hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing is associated with the claims file. After the case was certified to the Board, the Veteran submitted additional evidence to the Board in the form of private medical evidence that was not first considered by the RO. The submission of such evidence was accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2012). The issues of service connection for hypertension, radiculopathy/neuropathy of the lower extremities, spine disability and hepatitis are remanded to the RO via the Appeals Management Center in Washington, DC. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. The Veteran suffers from erectile dysfunction that is likely related to his service-connected diabetes mellitus. 2. By an August 1971 decision, the RO denied service connection for hepatitis; the Veteran did not appeal that denial. 3. Evidence received since the RO's August 1971 decision relates to an unestablished fact necessary to substantiate the claim of service connection for hepatitis, and it raises a reasonable possibility of substantiating the underlying claim. 4. By a May 1989 decision, the RO denied service connection for a thoracic spine injury with muscle strain; the Veteran did not appeal that denial. 5. Evidence received since the RO's May 1989 decision relates to an unestablished fact necessary to substantiate the claim of service connection for a thoracic spine disability, and it raises a reasonable possibility of substantiating the underlying claim. CONCLUSIONS OF LAW 1. The Veteran has erectile dysfunction that is proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. The August 1971 and May 1989 RO decisions are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 19.129, 19.192 (1971), 20.302, 20.1103 (1988). 3. New and material evidence has been submitted to reopen the claim of service connection for hepatitis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. New and material evidence has been submitted to reopen the claim of service connection for a disability of the thoracic spine. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset the Board notes that in light of the fully favorable outcome with regard to the issues of entitlement to service connection for erectile dysfunction and whether new and material evidence has been submitted to reopen previously denied claims of service connection for hepatitis and a thoracic spine disability decided herein, no discussion of VA's duty to notify and assist is necessary. I. Service Connection - Erectile Dysfunction The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (2012). In December 2005, the Veteran filed claims of service connection for, among other things, diabetes mellitus and erectile dysfunction, which he asserted was related to his diabetes mellitus. In the May 2007 decision on appeal, the RO granted service connection for diabetes mellitus, but denied service connection for erectile dysfunction upon finding that the evidence failed to show complaints related to or a diagnosis of erectile dysfunction. Evidence associated with the record since the May 2007 RO decision includes a private medical record dated on February 22, 2006, showing that the Veteran presented with complaints of decreased libido and an inability to maintain an erection. A diagnosis of erectile dysfunction was recorded. In October 2012, the Veteran submitted a statement from his private physician T.K., M.D., who opined that the Veteran's erectile dysfunction is most likely related to his service connected diabetes. Notably, the record contains no evidence to refute the private physician's opinion. Although the Veteran did not report erectile dysfunction during an October 2006 VA examination, it is not clear that he was specifically questioned regarding whether he was then currently experiencing erectile dysfunction. In light of Dr. T.K.'s favorable opinion, which the Board can find no adequate basis to reject based on a lack of credibility or probative value, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998), the Board finds that the Veteran has a current diagnosis of erectile dysfunction that has been linked to his service connected diabetes mellitus. Resolving reasonable doubt in favor of the Veteran, the Board concludes that service connection for erectile dysfunction, secondary to diabetes mellitus, is warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). In this regard, the Board points out that Note (1) of 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913, which sets forth the rating criteria for diabetes mellitus, instructs that compensable complications of diabetes are to be evaluated separately, unless they are part of the criteria used to support a 100 percent disability rating. 38 C.F.R. § 4.119, DC 7913 Note (1) (2012). Noncompensable complications, however, are to be considered part of the diabetic process. Id. II. Petition to Reopen Once finally adjudicated, a claim may not again be considered on the merits unless new and material evidence has been received. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); 38 C.F.R. § 3.156 (2012). Section 3.156(a) of title 38, Code of Federal Regulations provides the following definitions of 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); see Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that it must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384; see Butler v. Brown, 9 Vet. App. 167, 171 (1996). To determine whether new and material evidence has in fact been submitted, the Board first must compare the evidence submitted since the previous final denial with evidence previously of record. If the newly submitted evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not merely cumulative of other evidence that was then of record, it will be considered "new evidence" under 38 C.F.R. § 3.156(a). If the evidence is in fact new, the Board will then consider whether it is also material. In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See id. A. Thoracic Spine Initially, the Board observes that in April 1989, the Veteran filed a claim for VA disability compensation, seeking service connection for "back and side pains," which he indicated began in service in March and May 1987. In May 1989, the RO denied the Veteran's claim, characterizing the claimed disability as a thoracic spine injury with muscle strain based upon a March 1987 treatment record showing a diagnosis of tender thoracic spine at T10-11, left side. The RO noted that the Veteran's service treatment records (STRs) contained no further complaints related to the thoracic spine after appropriate therapy and treatment. At the time, the evidence of record consisted of the Veteran's STRs showing treatment in service for complaints of low back pain and left flank pain and noting that the Veteran had sustained a parachute jump injury in May 1986 and a softball injury in March 1987 and had been involved in a motor vehicle accident in May 1987. The Veteran was notified of the May 1989 RO decision and of his appellate rights; however, he did not timely file a notice of disagreement and that decision therefore became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (1988). In December 2005, the Veteran expressed his desire to "reopen" his claim for a back injury, initially filed in 1989. The Veteran submitted private treatment records dated in March 1996 that showed that the Veteran presented with complaints of low back pain and that a computed tomography (CT) scan revealed lumbar stenosis at L3-4 and L4-5. In April 1996, the Veteran underwent L3-L5 decompressive lamenectomies. The Veteran was afforded a VA examination in October 2006 during which he reported having sustained a back injury during a night parachute jump while stationed at Fort Bragg, North Carolina, in 1986. He reported treatment at Womack Hospital and stated that x-rays were negative for any evidence of a fracture. The Veteran stated that in 1996, he began to experience low back pain and sciatica and was diagnosed as having lumbar stenosis, which was treated with surgery. The examiner stated that he was unable to provide a nexus opinion without resorting to speculation. In April 2007, the RO "reopened" the Veteran's previously denied claim of service connection for a thoracic spine injury, but denied that claim on the merits based on the lack of nexus evidence. During his September 2012 hearing, the Veteran testified that he had injured his back during a parachute jump in service in 1986. He reported experiencing continual pain since that time and stated that the physician who preformed his previous back surgery suggested to him that his disability may have resulted from the parachute jump injury. In October 2012, the Veteran submitted a statement from Dr. T.K., who noted that Veteran's continued complaints of back pain and stated: "I think his back problem is incident-related to his service record." Upon review of the evidence associated with the claims folder since the May 1989 RO decision, the Board finds that evidence sufficient to reopen the Veteran's previously denied back claim has been submitted. In this regard, the Board notes that while the newly submitted evidence pertains not solely to an injury to the Veteran's thoracic spine, but also encompasses symptomatology related to the lumbosacral spine, the fact remains that the evidence as a whole is new and material in that, as will be discussed in further detail below, it at least triggers VA's duty to provide the Veteran with a medical examination to determine whether he has a currently diagnosed disability of the thoracic and/or lumbar spine that is related to service. See Shade, supra. Accordingly, the claim of service connection for a disability of the thoracic spine is reopened with the submission of new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). B. Hepatitis By way of an August 1971 rating decision, the Veteran was denied service connection for viral hepatitis. The Veteran did not disagree with the August 1971 RO decision and that decision therefore became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.129, 19.192 (1971). As a result of the finality of the August 1971 rating decision, the Veteran's claim of service connection for hepatitis may now be considered on the merits only if new and material evidence has been received. 38 U.S.C.A. § 5108; Evans and Manio, both supra; 38 C.F.R. § 3.156. In this case, the evidence of record at the time of the August 1971 RO decision included: the Veteran's STRs for his period of service from June 1968 to March 1971 showing treatment for anorexia, diarrhea, vomiting and dark urine and noting an impression of non-specific hepatitis, and the report of May 1971 VA examination that noted a history of non-specific hepatitis, treated, recovered. In August 1971, the RO denied service connection for viral hepatitis upon finding that the evidence failed to demonstrate the current presence of hepatitis. Since the August 1971 RO decision, new evidence added to the record includes: STRs from the Veteran's later periods of service; private medical evidence; VA treatment records; VA examination reports; private and VA laboratory findings; and lay statements from the Veteran, to include his September 2012 hearing testimony. Of record are the results of a blood test done in November 2001 for blood donation purposes. The hepatitis related tests confirmed the presence of antibodies of Hepatitis B Core (anti-HBc). The accompanying fact sheet notes that a positive anti-HBc test may indicate that the individual tested has been infected by the hepatitis B virus. Private treatment records dated in August 2012 also note a history of hepatitis B, but state that clinically, the Veteran does not have chronic hepatitis. The Board finds this evidence to be new, as it was not previously of record when the prior decision was made. That is, the previous evidence failed to contain evidence of current hepatitis infection. The Board also finds the evidence to be material in that the positive anti-HBc test raises a question as to whether the Veteran has a current hepatitis infection or its residuals, which, as will be discussed in further detail in the remand portion of this decision, triggers VA's duty to assist the Veteran. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012) (VA's duty to assist also includes the duty to provide a medical examination or obtain a medical opinion "when such an examination or opinion is necessary to make a decision on the claim"); Shade, supra; Hickson v. West, 12 Vet. App. 247, 253 (1999) (establishing service connection requires, among other things, evidence of a current disability); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Accordingly, the claim of service connection for hepatitis is reopened with the submission of new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER Service connection for erectile dysfunction, secondary to service-connected diabetes mellitus, is granted, subject to the law and regulations governing the payment of monetary benefits. New and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis. To this limited extent, the appeal is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for a thoracic spine disability. To this limited extent, the appeal is granted. REMAND The Veteran's STRs contain an impression of non-specific hepatitis in June 1970. His STRs from his subsequent periods of service also note a history of viral hepatitis while stationed in Vietnam. The Veteran's post-service treatment records indicate the presence of hepatitis B Core antibodies in November 2001. More recent private treatment records show no chronic infection. The Veteran has testified that he has had no post-service risk factors for hepatitis. Based on this evidence, the Board has determined that the "low threshold" necessary to establish entitlement to a VA medical examination has been satisfied. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 U.S.C.A § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012). Regarding the Veteran's claim of service connection for hypertension, the Veteran has stated his belief that his hypertension is secondary to his diabetes mellitus. In October 2006, the Veteran was afforded a VA examination, in part, to determine the nature and etiology of the Veteran's hypertension. The examiner noted that the Veteran's hypertension was diagnosed in 1996, eight years prior to his diagnoses of diabetes mellitus. The examiner opined, therefore, that it was less likely than not that the Veteran's hypertension is related to his diabetes. Upon review of the October 2006 VA examination report, the Board finds that it does not adequately address the issue of secondary service connection. Although the VA examiner opined against a causal relationship between the Veteran's service-connected diabetes mellitus and his hypertension, secondary service connection is a two-part issue that involves analysis of both causation and aggravation. See Allen, supra; 38 C.F.R. § 3.310(b). Thus, because VA examiner did not sufficiently address the second element of secondary service connection, the October 2006 examination report is inadequate for rating purposes and a remand is required for a new medical examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); 38 C.F.R. § 3.159(c)(4) (2012). In finding that the Veteran's claim of service connection for hypertension must be remanded for further development, the Board has considered the September 2012 opinion from Dr. T.K., who opined that the Veteran's hypertension is likely related to his diabetes. While Dr. T.K. acknowledged that the Veteran's hypertension was diagnosed before the diagnosis of diabetes was made, Dr. T.K. stated that the Veteran was in pre-diabetic state at that time. Here, Dr. T.K. provided no support for his conclusion that the Veteran's hypertension was related to his service-connected diabetes. Although there are no reasons or bases requirements imposed on a medical examiner, Ardison v. Brown, 6 Vet. App. 405, 407 (1994), the standards of adequacy for private and VA medical opinions are the same and to be adequate, an opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Given the VA examiner's contrary opinion, the lack of any supporting rationale renders Dr. T.K.'s opinion inadequate for evaluation purposes. Id. The Veteran is reminded that it is he who is ultimately responsible for submitting any private medical evidence. Thus, on remand, the Veteran is invited to seek a more detailed opinion from Dr. T.K. regarding the etiology of his hypertension. With regard to the Veteran's reopened claim of service connection for a back disability, the Board notes that although the claim was characterized as one for a disability of the thoracic spine, it does not appears as though the Veteran intended to so limit his claimed disability. Rather, as the Veteran has stated his belief that his current back disability stems from a 1986 parachute jump injury and his STRs show complaints of both right flank pain and low back pain, as well as indicate thoracic muscle strain, the Board finds that the Veteran's claim is more appropriately characterized as one for service connection for a disability of the thoracic and/or lumbar spine. This is so because VA is responsible for considering alternate current conditions within the scope of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of that claim"). The Board also finds that the medical evidence of record is insufficient for the Board to decide the claim. Notably, the October 2006 VA examiner failed to render an opinion regarding the likelihood that the Veteran's diagnosed back disability was related to service, stating that he was unable to do so without resorting to mere speculation. The examiner did not, however, specifically explain why an opinion cannot be provided without resort to speculation. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (holding that if an examiner concludes that a nonspeculative opinion cannot be offered, he or she must explain the basis for such a conclusion or the basis must otherwise be apparent from the evidence). Further, while Dr. T.K. said that he thought that the Veteran's back problem was incident-related to service, he provided no support for that conclusion and the Board finds the examiner's use of "think" renders his opinion speculative, especially in light of the fact that the examiner failed to indicate whether he had reviewed the Veteran's claims folder or based his opinion on anything other than the Veteran's self-reported history of injury. See Stegman v. Derwinski, 3 Vet. App. 228 (1992); Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (holding that medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence). However, as the claims folder contains evidence showing at least one currently diagnosed back disorder and treatment in service related to a thoracic spine injury and lumbar spine pain, and the Veteran has alleged pain since service and a medical provider has suggested that the Veteran's current back symptomatology may be related to his in-service injury, the Board finds that the Veteran must be afforded a VA examination to determine the nature and etiology of any currently diagnosed disability of the thoracic and/or lumbar spine. See 38 U.S.C.A § 5103A(d); McLendon, supra; 38 C.F.R. § 3.159(c)(4). Lastly, the Board notes that the Veteran has alleged that he suffers from neuropathy and/or radiculopathy related to his service-connected diabetes mellitus and/or diagnosed back disability. Private treatment records dated in March 2012 also note lumbar radiculopathy. Because the development to take place on remand and the determination regarding the Veteran's claim of service connection for a thoracic and/or lumbar spine disability may potentially impact the Veteran's claim of service connection for radiculopathy/neuropathy of the lower extremities, the Board finds that remand of that the claim of service connection for radiculopathy/neuropathy of the lower extremities is also necessary as it is inextricably intertwined with the Veteran's claim of service connection for a thoracic and/or lumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" on another, and that impact in turn "could render any review by this Court of the decision [on the other claim] meaningless and a waste of judicial resources," the two claims are inextricably intertwined); see also Gurley v. Nicholson, 20 Vet. App. 573, 575 (2007) (recognizing the validity of remands based on judicial economy when issues are inextricably intertwined). Accordingly, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. The Veteran should be afforded a VA examination to determine whether the Veteran currently has, or has at any since December 2005 had, an active hepatitis infection or chronic residuals of hepatitis that had its onset in service or is otherwise related to active service. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. The examiner should examine the Veteran and conduct all necessary laboratory testing. The examiner should review the results of any testing and include them in the report. The examiner should then provide an opinion as to whether as any point since December 2005 the Veteran had an active hepatitis infection or chronic residuals of hepatitis, and, if so, whether it is at least as likely as not that it/they is/are related to any period of active military service. The examiner is requested to review the test results conducted in connection with the Veteran's attempt to donate blood and state whether the presence of antibodies of hepatitis B Core (anti-HBc) indicates a chronic active infection or reflects a past infection that is no longer active. 2. Schedule the Veteran for a VA examination in connection with his claim of service connection for hypertension. The examiner should provide an opinion as to whether the Veteran's currently diagnosed hypertension is at least as likely as not related to any period of military service. An opinion should also be provided as to whether service-connected diabetes mellitus has caused or made chronically worse the Veteran's hypertension. If the examiner's opinion with respect to causation and/or aggravation differs from any other clinician's opinion, particularly that of Dr. T.K., the examiner should reconcile his or her findings and conclusions with the conflicting opinions and set forth detailed reasons for why he/she reached a different conclusion. If the examiner finds that diabetes has not caused hypertension but has made it worse, the examiner should comment on when the onset of "aggravation" took place and identify the baseline of the level of disability prior to aggravation and the permanent, measurable increase in the severity of hypertension that is caused by the service-connected diabetes mellitus. All opinions should be set forth in detail and explained in the context of the record. 3. Schedule the Veteran for a VA orthopedic examination in connection with his claims of service connection for thoracic and lumbar spine disabilities. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. All testing, including X-rays, deemed necessary should be undertaken. The examiner should review the claims file and take a detailed history from the Veteran regarding any in-service back injury and the nature of relevant symptoms since. All pertinent back pathology shown on examination should be annotated in the evaluation report. The examiner should specifically identify all diagnosed disabilities of the thoracic and lumbar spine segments. Then, the examiner should opine as to whether it is at least as likely as not, i.e. 50 percent probability or greater, that any diagnosed disability of the thoracic and/or lumbar spine had its clinical onset during active duty or is otherwise related to such service, including the documented parachute jump injury in May 1986, the softball injury in March 1987, or the motor vehicle accident in May 1987. The examiner should also identify any neurological symptoms and state whether any neuropathy and/or radiculopathy is due to or results from any diagnosed back disability. If any reported neurological symptom cannot be said to be related to a diagnosed back disability, the examiner should so state. (The AOJ should consider whether a peripheral nerves or other examination is warranted to address the likelihood that the Veteran has peripheral neuropathy related to his diabetes.) Regardless of whether the examiner's opinion as to any question is favorable or negative, the examiner must provide support for his/her opinion(s). This includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion. 4. After completing the requested actions, the AOJ should readjudicate the issues on appeal, which readjudication should include the issues of service connection for disabilities of both the thoracic and the lumbar spine. If any benefit sought is not granted, the Veteran should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). Thereafter, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs