Citation Nr: 1315634 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 09-00 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for benign prostate hypertrophy. 3. Entitlement to service connection for a neurological disorder (claimed as uncontrollable shakes/tremors). 4. Entitlement to service connection for hypertension. 5. Entitlement to an effective date prior to August 8, 1991 for the award of service connection for posttraumatic stress disorder (PTSD). 6. Whether new and material evidence has been received with respect to a claim of service connection for bilateral knee disorders. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1966 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from several rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the above issues and the Veteran has timely initiated appeal with respect to the issues listed above. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2013; a transcript of that hearing is associated with the claims file. The Board considers the bilateral knee issues reopened, and those reopened issues and the hypertension issue 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. In his February 2013 hearing, the Veteran requested withdrawal on the record of the appeals for service connection for prostate cancer, benign prostate hypertrophy, and neurological disorder (claimed as uncontrollable shakes/tremors). 2. A December 1998 rating decision denied service connection for arthritis of the knees; the Veteran did not appeal that decision. 3. The evidence received since the December 1998 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim of service connection for bilateral knee disorders, and raises a reasonable possibility of substantiating the claim. 4. The Veteran filed an initial claim for service connection in February 1982 and was denied in a May 1982 rating decision; after appealing that decision, the Board denied the claim in a March 1984 Board decision. 5. The March 1984 Board decision is final and subsumes all prior decisions. 6. The Veteran filed to reopen his claim in November 1987, and was denied in a January 1988 decision; new and material evidence was received in February 1988 regarding that decision. 7. VA readjudicated the claim in a February 1988 rating decision and was notified of that decision in a March 1988 letter; the Veteran did not appeal that decision and it is final. 8. April 1991 and June 1991 correspondences and submission of documents in May 1991 do not constitute informal claims for benefits regarding a psychiatric claim; such do not demonstrate intent to file for a psychiatric claim at that time. 9. The Veteran filed to reopen his claim for a psychiatric condition on August 8, 1991. CONCLUSIONS OF LAW 1. The criteria for withdrawal of appeals for service connection for prostate cancer, benign prostate hypertrophy and a neurological disorder (claimed as uncontrollable shakes/tremors) by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. New and material evidence has been received, and the claim of service connection for bilateral knee disorders is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria establishing an effective date prior to August 8, 1991 for the award of service connection for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400(q), (r) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Claims Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn during the course of a Board hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2012). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2012). In his February 2013 hearing, on the record, the Veteran requested to withdraw his issues from appeal with regards to his claims of prostate cancer, benign prostate hypertrophy and a neurological disorder (claimed as uncontrollable shakes/tremors). Hence, there remain no allegations of errors of law or fact for appellate consideration with regards to those issues; accordingly, the Board does not have jurisdiction to review those issues on appeal and they are dismissed. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Regarding the claim to reopen service connection for bilateral knee disorders, as the instant decision reopens that claim and remands for further development, no further discussion of VCAA compliance of that issue is required at this time. Turning to the earlier effective date issue, that claim arises from an appeal of the initial assignment of an effective date following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a February 2013 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims herein decided. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is received during an applicable appeal period following a RO decision (one year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); 38 C.F.R. §§ 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision-makers. 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) (2012). Claim to Reopen Service Connection for Bilateral Knee Disorder Initially, the Board notes that the Veteran filed for and was denied service connection for bilateral knee arthritis in a December 1998 rating decision; he was informed of that decision in a January 1999 notice letter. The Board has reviewed the evidence from within one year of that notice letter. The Board finds that the Veteran did not submit a notice of disagreement with regards to his bilateral knee claim during that time period, nor was there new or material evidence received during that period with regards to the Veteran's knee claims. The Board additionally finds that new service department records which were not of record at the time of the December 1998 rating decision have not been received. As no new and material evidence was received within the appeal period following the December 1998 rating decision, that decision became final. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Likewise, this claim is not reopened for a de novo review of the claim on the basis of new service department records having been associated with the claims file. See 38 C.F.R. § 3.156(c). The Veteran was appropriately notified of the rating decision in the January 1999 letter and no notice of disagreement was received within one year of such notification. Accordingly, the December 1998 rating decision is considered final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). Therefore, new and material evidence is required to reopen the claim of service connection for a lumbar spine disorder, regardless of how the RO characterized the issue. See 38 U.S.C.A. § 5108 (West 2002); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. In the Veteran's February 2013 hearing, the Veteran testified that during his period of service in the Republic of Vietnam he participated on a swift boat mission during which he slipped and fell, injuring his left knee. The Veteran asserts that his current left knee disorder is related to this fall in service, and that his right knee disorder is due to compensating for his left knee condition. The Board finds that the above-referenced evidence constitutes new and material evidence. It relates directly to whether the Veteran had a knee injury during service and whether this resulted in chronic disability; it additionally raises a secondary service connection issue stemming from that claimed chronic injury in service. It raises a reasonable possibility of substantiating the claim. As such, the requirements under 38 C.F.R. § 3.156(a) have been met and the claim is reopened. Earlier Effective Date for Award of Service Connection for PTSD Currently, the Board notes that the Veteran's earlier effective date claim arises from any initial grant of service connection in a January 5, 2005 rating decision, which granted service connection for PTSD effective August 8, 1991-the date on which he filed his claim to reopen service connection. While several documents after that January 2005 decision indicate that the grant of benefits originate from a Board decision, the last Board decision prior to the January 2005 grant of benefits was a July 2003 remand for a scheduling of a travel board hearing. Following the January 2005 rating decision, the Veteran withdrew his claims on appeal and the case was never recertified to the Board following that decision. Awards based on new and material evidence received after final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii), (r) (2012). The Veteran has averred that he should be awarded service connection on several dates prior to August 8, 1991, including the date after his discharge, when he initially filed his claim in 1982, and in May 5, 1988, which corresponds to a date on which he could no longer work following being robbed at a 7-11 at gun point. The Board notes that the Veteran initially filed a claim of service connection for a psychiatric condition in February 1982 which was denied in a May 1982 rating decision. The Veteran timely appealed that decision to the Board, which remanded that claim in August 1983 before subsequently denying that claim in a March 1984 Board decision. The Board notes that the Veteran's day after discharge from service is not an appropriate effective date to be assigned in this case because the Veteran did not file a claim for his psychiatric disorder within one year of his discharge from service; rather, the earliest date on which he could be assigned an effective date in this case would be his initial date of claim in February 1982. See 38 C.F.R. § 3.400(b)(2)(i) (2012) (noting date after separation of service is only appropriate when claim is received within 1 year of separation from service, otherwise assignment is the date of claim or date entitlement arose, whichever is later). The Board notes that the March 1984 Board decision is final, as there was no timely request for reconsideration received and it does not appear that the Veteran appealed that Board decision to the United States Supreme Court at that time-the sole recourse for the Veteran in 1984, prior to the inception of the United States Court of Appeals for Veterans Claims in 1989. See 38 C.F.R. § 19.104 (1984), updated and currently codified at 38 C.F.R. § 20.1100 (2012). The Board notes that all prior rating decisions with respect to the psychiatric condition claim are subsumed by the March 1984 Board decision. See 38 C.F.R. §§ 3.105(a), 20.1104 (2012); see also Duran v. Brown, 7 Vet. App. 216 (1994). In this case, as the Board's March 1984 decision has subsumed all other previous rating decisions and is considered final, the Veteran's February 1982 claim is considered to be final as of the decision date of the March 1984 Board decision. Accordingly, as that March 1984 Board decision is final and denied service connection at that time, the Board cannot award service connection for any date prior to that decision in this case. The Veteran filed a claim to reopen service connection for PTSD on November 16, 1987. In a January 1988 rating decision, the RO denied reopening service connection for PTSD as all of the evidence the Veteran submitted was duplicates of evidence that had been considered in the March 1984 decision and/or was unrelated to the Veteran's psychiatric disorder claim. In February 1988, the Veteran submitted a statement, which in pertinent part, noted that he had "suffered bouts of depression, to extreme rage; according to doctors, this condition is directly linked to military combat. [He] had some psychological treatment at the Dallas VA facility . . . from November 1981 to February 1982 (records on file)." In a February 1988 rating decision, the RO issued another rating decision which denied reopening service connection on the basis that the evidence of record was not new and material. The Veteran was informed of that decision in March 1988 notice letter. No new evidence was received with regard to the psychiatric claim within one year of the March 1988 letter. In this case, the Board notes that new service department records which were not of record at the time of the February 1988 have not been associated with the claims file; accordingly, a de novo review is not appropriate in this case. See 38 C.F.R. § 3.156(c). Moreover, while the Board acknowledges that the Veteran submitted new evidence relating to the claim in January 1988 after the January 1988 rating decision, VA fulfilled its duty to readjudicate the claim to include this evidence in the February 1988 rating decision. The Board notes that no new and material evidence was received within one year of that February 1988 decision or the March 1988 notice letter. Accordingly, the Board considers the February 1988 rating decision to be final. See 38 C.F.R. § 3.156(b); Buie, supra. Finally, the Board notes that the Veteran was informed of the denial of his claim in the March 1988 notice letter. The Veteran did not submit a notice of disagreement with that decision within one year of that decision or the notice letter. Accordingly, the Board finds that the February 1988 rating decision is also final. See 38 C.F.R. § 3.156(a). The Board notes that in April 1991, the Veteran submitted new claims for service connection for headaches and skin lesions. In response to a May 1991 letter soliciting treatment records in connection with the skin condition, the Veteran submitted duplicates of the 1981 through 1983 VA treatment records demonstrating psychiatric treatment; those records were received on May 28, 1991. The Board does not find the submission of these records to be an informal claim for benefits. These records were submitted in response to a May 1991 letter soliciting treatment records for an already claimed skin condition. Moreover, merely submitting these records at that time does not demonstrate any intent by the Veteran to apply for reopening his psychiatric claim at that time; such was merely a response to the May 1991 letter. Accordingly, the Board does not find that such submission of evidence at that time to be an informal claim. See 38 C.F.R. § 3.155 (2012). Additionally, the Board does note that an August 1990 treatment record from Dr. B.J.D. was received on May 28, 1991, which noted that he was being followed for generalized anxiety, lumbosacral strain with lower back instability, and migraine headaches. That submission of a treatment record documenting that he is currently being treated for generalized anxiety disorder, however, does not demonstrate any intent to file a claim for that disorder. The Board notes that the Veteran submitted lots of evidence that day with respect to a skin and headaches claim he had initiated in April 1991. The Board notes that inclusion of this note on this day, particularly when previously solicited for information regarding treatment in the May 1991 letter, is more likely to demonstrate intent to provide information as requested, rather than to file a claim for benefits regarding his psychiatric disorder. The Board therefore finds that receipt of that note is not an informal claim. See Id. The Board does note, however, that a March 1989 treatment record as well as an April 1991 treatment record did accompany those duplicate records; both were VA treatment records. Those records, however, were for physical maladies and not for any mental health treatment. According, the Board finds that there is no evidence that the Veteran sought treatment with VA prior to the August 8, 1991 claim such that it would raise a claim by virtue of seeking treatment. See 38 C.F.R. § 3.157 (2012). On August 9, 1991, the Board received private psychiatric treatment records from Dr. B.J.D. from June 1989, November 1989 and an undated evaluation; these records are in addition to the record received on May 28, 1991. The Board notes that as Dr. B.J.D. is a private treatment provider, the Veteran cannot benefit from seeking treatment for with that provider prior to August 8, 1991 without informing VA of that treatment, usually be providing those records in combination with a claim for benefits. See Id. Such did not occur here until after the August 8, 1991 date currently assigned, and therefore the Veteran would not benefit from assignment of that date in this case. The Board notes that a June 1991 correspondence from the Veteran references only his pending skin condition claim at that time. Accordingly, it can also not function as an informal claim. The Veteran submitted his claim to reopen service connection for PTSD on August 8, 1991; such as been the assigned date in this case, and is the earliest assignable effective date with regards to the claim for PTSD. Accordingly, the Board must deny the Veteran's claim for an effective date prior to August 8, 1991 for the award of PTSD at this time. See 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400(q), (r). Insofar as the Veteran has argued that he was misdiagnosed with generalized anxiety disorder rather than PTSD prior to August 8, 1991 or otherwise should have been awarded service connection for generalized anxiety disorder prior to August 8, 1991, the Board finds that such necessarily implicates a claim for clear and unmistakable error (CUE) in this case. The Board notes that final decisions can only be revised with a finding of CUE. See 38 C.F.R. § 20.1400 (2012). However, any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium); aff'd sub nom., Andre v. Principi, 201 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than mere disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). By contrast, broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, non-specific claim of error cannot meet the specificity required to render a claim of CUE meritorious. See Fugo, 6 Vet. App. at 44; see also Russell, 3 Vet. App. at 313-14. Furthermore, any breach by VA of its duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete record rather than an incorrect one. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000); Crippen, 9 Vet. App. at 424; Caffrey, supra. The Veteran's allegations in the record, however, appear to be broad-brush allegations, rather than specific pleadings required for a claim of CUE; notably, the Veteran does not indicate which rating or Board decision that he believes the error occurred in, just that, generally, an error has occurred. The Board does not find that such is sufficient at this time to raise a claim for Board CUE in the March 1984 decision, or to refer a CUE claim back to the RO. This decision, however, does not foreclose the Veteran from filing a more specific pleading with regards to allegations of CUE at any future time, particularly with regards to the March 1984 Board decision, should he wish to do so in the future. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER The appeals of service connection for prostate cancer, benign prostate hypertrophy, and a neurological disorder (claimed as uncontrollable shakes/tremors) are dismissed. New and material evidence having been received, the claim of service connection for bilateral knee disorders is reopened; to this limited extent, the appeal is granted. An effective date prior to August 8, 1991 for the award of service connection for PTSD is denied. REMAND With regards to the Veteran's reopened bilateral knee disorder, the Board notes that the Veteran is shown to have been involved in Operation Kingfisher during his period of service in the Republic of Vietnam; such is shown to be a combat mission. The Board therefore finds that the Veteran's left knee injury is of the types, places and circumstances of the Veteran's military combat service, despite there being no record of such in his service treatment records. See 38 U.S.C.A. §§ 1154(b) (West 2002). In light of this credible evidence of an in-service left knee injury, the Board finds that a VA examination is warranted; a remand of that issue is therefore necessary at this time. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). With regards to the Veteran's hypertension, the Board notes that the Veteran is currently shown to be diagnosed with hypertension and takes medication for that condition. The Veteran testified in his February 2013 hearing that his hypertension was due to herbicide exposure in service; the Veteran is presumed to have been exposed to herbicides as a result of his service in the Republic of Vietnam. See 38 C.F.R. § 3.307(a)(6(iii) (2012). Alternatively, the Veteran has averred that his hypertension is related to PTSD; the Veteran has therefore raised a secondary service connection theory of entitlement with respect to his hypertensive disorder. The Board notes that no VA examination addresses the Veteran's contentions with respect to his hypertensive disorder. Accordingly, the Board finds that a remand of that issue is also necessary at this time. See McLendon, supra; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Dallas VA Medical Center, or any other VA medical facility that may have treated the Veteran, since June 2009 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his bilateral knee or hypertensive disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA examination in order to determine the nature and etiology of any bilateral knee disorders. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary, including x-rays, should be conducted. After review of the claims file and examination of the Veteran, the examiner should state all bilateral knee disorders found, including any arthritic conditions thereof. The examiner should then opine as to whether any of the Veteran's bilateral knee disorders found are more likely, less likely, or at least as likely as not (50 percent or greater probability) caused by his military service, to include the slip-and-fall on a swift boat. The examiner is to take as conclusive fact that such a slip-and-fall occurred during service and that the Veteran landed on his left knee. The examiner should discuss the lack of any treatment for that condition as well as the noted 1967 medical board which noted that he did not have any physical problems with the exception of his bronchial asthma. If and only if one of the Veteran's bilateral knees is shown to be related to service, the examiner should also indicate whether any nonservice-related knee disorder is more likely, less likely or at least as likely as not caused by the service-related knee disorder (i.e., is the right knee disorder due to the left knee disorder), to include any altered gait or weightbearing as a result of that disability. The examiner should discuss the Veteran's lay evidence with regards to that theory of causation. The examiner should then also determine whether the Veteran's nonservice-related knee disorder more likely, less likely, or at least as likely as not has been aggravated (i.e., made permanently worse beyond the normal progression of that disease) by his service-related knee disorder. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Schedule the Veteran for a VA examination in order to determine whether his hypertension is related to military service or his service-connected PTSD. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. After review of the claims file and examination of the Veteran, the examiner should state all hypertensive disorders found. The examiner should then opine as to whether the Veteran's hypertension is more likely, less likely, or at least as likely as not (50 percent or greater probability) caused by his military service, to include herbicide exposure therein. The examiner is to presume exposure to herbicides during service. The examiner should discuss any blood pressure reading in service or within one year after discharge from service and indicate whether any elevated readings therein are initial manifestations of the Veteran's hypertension, and opine whether such readings, if existent, were chronic and continuous since that time and have progressively worsened into the Veteran's currently-diagnosed hypertensive disorder. The examiner should also opine whether the Veteran's hypertension is more likely, less likely or at least as likely as not caused by his PTSD. The examiner should then opine whether the Veteran's hypertension is more likely, less likely, or at least as likely as not aggravated (e.g., permanently worsened beyond the normal progression of that disease) by his PTSD. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for hypertension and bilateral knee disorders. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant 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 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs