Citation Nr: 1310758 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-29 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for throat ulcers. 4. Entitlement to service connection for hypertension, to include as secondary to service connected diabetes mellitus, Type II. 5. Entitlement to service connection for gastroesophageal reflux disease (GERD). 6. Entitlement to service connection for bilateral carpal tunnel syndrome. 7. Entitlement to service connection for disability exhibited by fatigue, to include as secondary to service connected diabetes mellitus, Type II. 8. Entitlement to an increased rating for bilateral peripheral neuropathy of the feet, each foot rated as 10 percent disabling. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The Veteran had active duty service from April 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2007 and February 2010 rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Chicago, Illinois that denied the benefits sought on appeal. The Veteran was afforded a September 2012 hearing before the undersigned. A transcript of the hearing is associated with claims folder. A review of the Virtual VA paperless claims processing system does not show additional pertinent evidence. The RO had previously considered service connection for fibromyalgia in September 2007 decision, which the Veteran did not appeal. However, in his October 2009 claim, he identified "severe fatigue" as his disability. Since the newly submitted claim is based on a diagnosis not previously considered, it constitutes a new claim that is decided on a de novo basis. Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). In May 2008, the Veteran submitted a claim for an effective date prior to February 29, 2008 for the grant of service connection for erectile dysfunction. The issue of an earlier effective date for service connection for erectile dysfunction has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of service connection for disability exhibited by fatigue, right shoulder disability, bilateral hearing loss, throat ulcers, GERD, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the September 2012 hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the issue of service connection for bilateral carpal tunnel syndrome is requested. 2. Since November 20, 2006, the effective date for the grant of service connection, the Veteran's peripheral neuropathy of both lower extremities have been manifested by incomplete paralysis of the nerve with subjective symptoms of pain, numbness, and tingling on use, with objective findings of diminished sensation. Moderate to severe symptoms such as trophic changes, motor loss, loss of reflexes or complete paralysis has not been shown. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of service connection for bilateral carpal tunnel syndrome by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for a rating in excess of 10 percent for peripheral neuropathy in either lower extremity have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.124a, DC 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn his appeal for service connection for bilateral carpal tunnel syndrome and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue, and it is dismissed. II. Duty to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Proper notice from 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 seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The record indicates that the Veteran was provided with adequate VCAA notice in November 2009. Specifically, the RO notified the Veteran of information and evidence necessary to substantiate his increased rating claim. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. He was also notified about how VA assigns disability ratings and effective dates. The claim was subsequently adjudicated by the RO in February 2010. The duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's private medical records and VA treatment records have been obtained. He has submitted several written statements to support his claims. The Veteran's service treatments records are not available. Nonetheless, as the issue is the status of his current disability, additional development to locate these records would not raise any reasonable possibility of substantiating the claim or otherwise be of assistance. 38 C.F.R. § 3.159(d). The Veteran was afforded an adequate VA examination in May 2007 and February 2010. The record does not suggest that his peripheral neuropathy in either extremity has increased since February 2010. The Veteran has asserted that the February 2010 VA examination was inadequate. March 2010 Veteran statement. He complained that the clinical examination was limited to 15 minutes and did not accurately assess his multitude of symptoms. Review of the February 2010 VA examination report shows that the examiner reviewed the claims folder and queried the Veteran about his symptoms. He clinically examined the Veteran's feet. His clinical findings are consistent with contemporaneous VA treatment records from April and November 2010. For these reasons, the Board finds the Veteran's assertions that he had an inadequate examination to be without merit. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam); See also 77 Fed. Reg. 23128-01 (April 18, 2012). At the September 2012 hearing, the undersigned identified the issues on appeal and queried the Veteran about his current peripheral neuropathy symptoms. The Veteran described his symptoms. The record was held open for an additional thirty days to allow the Veteran to submit additional evidence. The duties imposed by Bryant were thereby met. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. III. Increased rating for peripheral neuropathy of the lower extremities, each rated as 10 percent disabling. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran is assigned 10 percent disability ratings for the service-connected peripheral neuropathy of each foot throughout the appeal period. As will be explained below, the Board finds that increased disability ratings are not warranted, with respect to the pending claims, at any point during the appeal period. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, atrophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2012). The Veteran's peripheral neuropathy of the lower extremities is currently rated under Diagnostic Code (DC) 8520. 38 C.F.R. § 4.124, DC 8520. DC 8520 provides an 80 percent rating for complete paralysis of the sciatic nerve, contemplated by foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis that is mild, moderate or moderately severe in degree, respectively. Id. The Veteran had an initial consultation with a VA primary care clinic (PCC) in December 2005. He stated that he had recently been diagnosed with diabetes and was followed by Dr. R. He did not identify any neurological problems. Clinical examination was unremarkable. VA treatment records from July 2006 show that the Veteran had a normal diabetic foot examination. A May 2007 VA examination report is of record. The Veteran stated that he had developed numbness and tingling in both feet over the past six months with the right being worse than the left. Clinical examination showed decreased vibration sensation in both feet. Reflexes and strength were normal in both lower extremities. The examiner did not observe any skin disorder. He diagnosed peripheral neuropathy of both feet related to diabetes. The Veteran had another VA PCC consultation in September 2009. He did not complained about any neuropathy symptoms. He stated that he was active working on his boat dock and engaging in exercise. However, the examiner indicated that the Veteran had an abnormal diabetic foot examination, but did provide any additional comment. In February 2010, the Veteran had a VA peripheral neuropathy examination. He reported having pain, tingling, and numbness on the bottoms of both feet with the right being greater than the left. The numbness and tingling had changed to increased pain over the past year. He started walking less. Sometimes he had mild numbness on the top of his feet, but the pain was currently limited to the bottom of his feet. He denied muscle atrophy, weakness, or joint involvement in his lower extremities. Clinical examination of the lower extremities did not show any diabetic ulcer; however, trace edema was observed. The Veteran exhibited decreased pinprick sensation distally from bilateral ankles. The examiner assessed diabetic neuropathy of the bilateral lower extremities involving the distal sensory fibers of the sensory nerves of the feet. He additionally ruled out neuritis, neuralgia, or paralysis. VA treatment records from April 2010 show that the Veteran had another diabetic foot examination. He described having a lot of numbness and occasional tingling in both feet. He denied any other foot problems. Clinical examination showed skin and vascular function to be normal. Neurological findings showed Epicritis sensation was grossly diminished to the plantar and dorsal feet up to the ankles. Muscle strength was normal. The examiner assessed peripheral neuropathy. The Veteran revisited the VA diabetic foot clinic in November 2010. He had the same complaints about numbness and tingling from his last visit. Clinical examination again showed skin and vascular function to be normal. Neurological findings showed Semmes-Weinstein monofilament testing of 0/10 for the right foot and 5/10 for the left foot. Musculoskeletal findings were unremarkable. The examiner diagnosed neuropathy. At the September 2012 hearing, the Veteran reported that the bottoms of both feet were occasionally numb. He stated that his feet began to hurt if he walked for long periods. He did not have any foot sores and his nurse told him that he took good care of his feet. In summary, the record shows that the Veteran has sensory disturbances in both feet. Although he reports limiting some activities, such as long walks or increased exertion during exercise, his neuropathy has not been shown to pose additional impairment in activities of daily living. Peripheral neuropathy of the lower extremities has not been productive of muscle atrophy, paralysis, diminished reflexes, or loss of strength in either foot. It is limited to sensory disturbances. Without showing any clinical abnormalities beyond sensory disturbances, a rating in excess of 10 percent for moderate peripheral neuropathy is not warranted for either foot. 38 C.F.R. § 4.124a, DC 8520. Extraschedular considerations The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the severity of the Veteran's service-connected bilateral peripheral neuropathy of the lower extremities are fully contemplated by the rating criteria. They are productive of occasional pain and numbness. There is nothing exceptional about them. The degree of disability exhibited is contemplated by the rating schedule. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). Total disability based upon individual unemployability (TDIU) A request for a TDIU whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. In this instance, the record shows that the Veteran left employment due to age and claimed fatigue. He does not assert that peripheral neuropathy was related to his decision to leave work. TDIU is not for further consideration. ORDER The claim of service connection for bilateral carpal tunnel syndrome is dismissed. A rating in excess of 10 percent for service connected peripheral neuropathy for either foot is denied. REMAND Additional efforts are necessary to locate the Veteran's service treatment records (STRs). In March 2007, the National Personnel Records Center (NPRC) stated that they mailed the Veteran's STRs to the Chicago RO in October 1987 under a different claims file number. The Veteran Appeals Control and Locator System (VACOLS) indicate the file number identified by the NPRC is for another Veteran sharing the same surname. It appears to be currently located at the RO in St. Petersburg, Florida. The RO/AMC must locate the claims file listed by the March 2007 NPRC response and determine if the Veteran's STRs were misplaced. All efforts in locating the missing STRs must be documented. If the STRs cannot be located, a Formal Finding of Unavailability must be made by listing all custodians contacted and their responses with notice to the Veteran and his representative. After obtaining STRs or determining that they are unavailable, additional VA examinations and medical opinions are needed for the remaining claims. Fatigue and hypertension For the claimed fatigue and hypertension, both of these disabilities are claimed secondary to service connected diabetes mellitus, Type II. Under 38 C.F.R. § 3.310, secondary service connection is warranted for any disability aggravated by a service connected disability. The Veteran was afforded examinations for these claims in May 2007 and February 2010, but the examiner did not adequately consider the issue of aggravation. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided."). Additional medical opinions addressing the issue of aggravation are necessary for these claims as detailed below. Hearing loss The May 2007 VA hearing loss examination is inadequate since the examiner based her opinion on incorrect STRs. Barr, 21 Vet. App. at 311. In addition, the Veteran has reported that he was denied employment due to hearing problems in the early 1970s. This report must also be considered in any nexus opinion. Another VA hearing loss examination is necessary as detailed below. Right shoulder, throat ulcer, and GERD VA examinations have not been obtained for the claimed right shoulder, throat ulcer, and GERD disabilities. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. At the September 2012 hearing, the Veteran reported having throat ulcers in service and GERD symptoms shortly after separation. He specifically recalled having treatment for throat ulcers at Fort Carson. He also stated that he injured his right shoulder during a fall. He continues to have symptoms relating to these claimed disabilities. Given the low threshold for finding a nexus and current absence of STRs, the Board finds that VA examinations are necessary to adjudicate these claims as described below. Locklear, 20 Vet. App. 410; McLendon, 20 Vet. App. at 83; see also O'Hare, 1 Vet. App. at 367. Ongoing VA treatment records should also be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Locate the claims folder listed in the March 2007 NPRC response and determine if the Veteran's STRs were misplaced. Contact all pertinent custodians and document all responses. Search efforts for the STRs must continue until it is certain further efforts would be futile. In the event STRs cannot be located, issue a Formal Finding of Unavailability listing all custodians contacted and their responses with notice to the Veteran and his representative. 2. Obtain all pertinent VA treatment records after November 2010 and associate them with the claims folder. 3. After all efforts have been exhausted to obtain and associate with the claims file STRs and any additional VA treatment records, obtain a medical opinion regarding the etiology of the Veteran's claimed fatigue. The claims file, to include a copy of this Remand, and any pertinent records in Virtual VA, must be made available for review of the Veteran's pertinent medical and other history. The examination report must state whether this review was accomplished. (i) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current fatigue is proximately due to any in-service event, injury, or disease. (ii) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current fatigue is proximately due to service-connected diabetes. (iii) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has current fatigue that is aggravated (made permanently worse beyond its natural progression) by his service-connected diabetes. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 4. After all efforts have been exhausted to obtain and associate with the claims file STRs and any additional VA treatment records, obtain a medical opinion regarding the etiology of the Veteran's claimed hypertension. The claims file, to include a copy of this Remand, and any pertinent records in Virtual VA, must be made available for review of the Veteran's pertinent medical and other history. The examination report must state whether this review was accomplished. (i) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current hypertension is proximately due to any in-service event, injury, or disease. (ii) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has current hypertension that is proximately due to service-connected diabetes. (iii) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has current hypertension that is aggravated (made permanently worse beyond its natural progression) by his service-connected diabetes. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 5. After all efforts have been exhausted to obtain and associate with the claims file STRs and any additional VA treatment records, schedule the Veteran for another VA audiology examination. The claims folder, a copy of this Remand, and access to the Virtual VA efolder must be given to the examiner, who should acknowledge receipt and review of the records. The examiner should interview the Veteran about noise exposure and his hearing loss history. He must be afforded a puretone audiometry test and Maryland CNC speech discrimination test. Based upon test results and a complete review of the record, the examiner must express an opinion as to whether it is more likely than (50 percent probability or greater) that the Veteran's current hearing loss is related to in-service noise exposure. A detailed rationale, including consideration of the Veteran's reports that he was denied employment shortly after separation due to poor hearing, must be provided. If the Veteran's hearing loss is deemed related to service, the examiner should furthermore list the functional impairments caused by hearing loss. The Veteran is competent to describe his reports of noise exposure and hearing loss history. His reports must be considered. If the examiner rejects the Veteran's reports, an explanation must be given and it cannot solely be based upon an absence of contemporaneous audiological treatment. If the examiner cannot provide an opinion without resort to speculation, he or she explain why and identify any outstanding medical records that would facilitate a non-speculative opinion. 6. After all efforts have been exhausted to obtain and associate with the claims file STRs and any additional VA treatment records, schedule the Veteran for a VA right shoulder examination. The healthcare provider must indicate receipt and review of the claims file and any pertinent documents in the Virtual VA efolder. A clinical examination with any necessary medical testing must be conducted. After complete review of the claims folder and clinical examination, the examiner is asked to opine on whether it is as likely as not (probability of 50 percent or greater) that any current right shoulder disability is related to service. The examiner must consider the Veteran's reports of an in-service fall that injured his shoulder. A complete rationale for all opinions should be given. The Veteran is competent to report his observable symptoms and relate his medical history. The examiner must consider his reports, especially his description of the in-service fall. If the examiner rejects the Veteran's reports, he or she must explain why and cannot rely solely on the absence of contemporaneous medical treatment to do so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 7. After all efforts have been exhausted to obtain and associate with the claims file STRs and any additional VA treatment records, schedule the Veteran for a throat and esophagus examination. The healthcare provider must indicate receipt and review of the claims file and any pertinent documents in the Virtual VA efolder. A clinical examination with any necessary medical testing must be conducted. After complete review of the claims folder and clinical examination, the examiner is asked to opine on whether it is as likely as not (probability of 50 percent or greater) that any current throat or esophageal disorder is related to service. The examiner must consider the Veteran's reports of in-service throat lesions and development of GERD shortly after separation. A complete rationale for all opinions should be given. The Veteran is competent to report his observable symptoms and relate his medical history. The examiner must consider his reports, especially his description of in-service throat lesion and GERD symptoms shortly after separation. If the examiner rejects the Veteran's reports, he or she must explain why and cannot rely solely on the absence of contemporaneous medical treatment to do so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 8. After completing all development required to adjudicate the Veteran's claims, re-adjudicate these issues. If the benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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). 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs