Citation Nr: 1316420 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 10-22 344A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a left arm disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for a back disability. 3. Entitlement to service connection for residuals of a head injury, to include headaches and a cervical spine disability. 4. Entitlement to service connection for a bilateral ankle disability. 5. Entitlement to service connection for a left eye disability. 6. Entitlement to service connection for a back disability. 7. Entitlement to service connection for a bilateral knee disability. 8. Entitlement to service connection for a skin disease. 9. Entitlement to service connection for an allergic reaction to the swine flu vaccine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to November 1988. He received the Army Commendation Medal. These matters come before the Board of Veterans' Appeals (Board) from May 2008 and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In the May 2008 decision, the RO denied entitlement to service connection for a left arm injury, residuals of a back injury, head injuries with loss of consciousness and headaches, a left ankle sprain, hemiretinal vein occlusion of the left eye, status post laser surgery with cataract, and degenerative joint disease of the left knee. In the June 2009 decision, the RO denied entitlement to service connection for a right ankle disability, a right knee disability, and pseudofolliculitis barbae. The Veteran testified at an October 2012 videoconference hearing. In October 2012, the Board sent the Veteran a letter informing him that it was unable to produce a written transcript of the October 2012 hearing and asked him to indicate whether he wanted to attend a new hearing. The Veteran responded that he did not wish to have another hearing. In April 2013, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board notes that the left arm and back issues on appeal have been characterized as solely entitlement to service connection for a left arm disability and a back disability by the agency of original jurisdiction (AOJ). Claims, however, of service connection for left arm and back disabilities were denied in an April 2003 rating decision. The Veteran's service treatment records were in the claims file and considered at the time of this decision. The Veteran was notified of this decision, he did not appeal, and new and material evidence was not received within one year of its issuance. Hence, the April 2003 decision became final as to the denial of service connection for left arm and back disabilities. See 38 U.S.C.A. § 7105(d)(3) (West 2002); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2012). Where the claims in question have been finally adjudicated at the AOJ level and not appealed, the statutes make clear that the Board must initially determine whether new and material evidence has been submitted with regard to the claims of service connection for a left arm disability and a back disability, regardless of whether the previous action denying the claims was appealed to the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of the claims. Hickson v. West, 11 Vet. App. 374, 377 (1998). Thus, despite the prior characterization of the left arm and back issues throughout the appeal, the Board has recharacterized the issues as stated above. With respect to the claims of service connection for residuals of a head injury and a left knee disability, these claims were originally denied in the April 2003 rating decision. At that time, the RO found that there was no medical evidence of any residuals of a head injury or left knee disability. Specifically, the RO explained that the medical evidence of record failed to show that these disabilities had been clinically diagnosed. New and material evidence was received within a year of the April 2003 rating decision as VA was in possession of VA treatment records dated in March 2003 which include reports of occasional headaches and diagnoses of left knee pain and probable early degenerative joint disease of the left knee. These treatment records were not in the claims file at the time of the April 2003 decision. See 38 C.F.R. § 3.156(a). The AOJ readjudicated and again denied the claims of service connection for residuals of a head injury and a left knee disability in the May 2008 rating decision, from which the current appeal arose. As new and material evidence was received within a year of the April 2003 rating decision, that decision is not final and the Veteran's initial claims of service connection for residuals of a head injury and a left knee disability remain pending. See Bond, 659 F.3d at 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156 (a)-(b). Moreover, although the Veteran's claim of service connection for residuals of a head injury has only referred to headaches and loss of consciousness and the AOJ has previously characterized the issue on appeal as being entitlement to service connection for residuals of a head injury (to include memory loss and headaches), the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As explained below, the evidence reflects that the Veteran's headaches are, at least in part, the result of a cervical spine disability. Thus, the Board has recharacterized the issue as a claim of service connection for residuals of a head injury, to include headaches and a cervical spine disability. In his June 2010 substantive appeal (VA Form 9), the Veteran raised the issue of entitlement to service connection for hypertension. This issue has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for a left eye disability, a back disability, a bilateral knee disability, and an allergic reaction to the swine flu vaccine 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 October 2012, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal his petition to reopen the claim of service connection for a left arm disability and his claims of service connection for a bilateral ankle disability and a skin disease. 2. The Veteran's claim of service connection for a back disability was denied in the April 2003 rating decision as there was no medical evidence of a back disability; the Veteran did not appeal that determination and new and material evidence was not received within a year of its issuance. 3. Evidence received since the April 2003 decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for a back disability, the absence of which was the basis of the previous denial. 4. The Veteran's current cervical spine disability and resulting headaches are the result of an in-service injury. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran, as to the issues of whether new and material evidence has been received to reopen a claim of service connection for a left arm disability and entitlement to service connection for a bilateral ankle disability and a skin disease, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The RO's April 2003 decision that denied the claim of service connection for a back disability is final. 38 U.S.C.A. § 7105(d)(3) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2012). 3. The evidence received since the April 2003 decision is new and material and sufficient to reopen the claim of service connection for a back disability. 38 U.S.C.A. §§ 5107(b), 5108 (West 2002); 38 C.F.R. § 3.156(a). 4. The Veteran's current cervical spine disability and headaches were incurred in service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Issues 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. 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. Withdrawal may be made by the Veteran or by his or her authorized representative in writing or on the record at a hearing on appeal. Id. In the present case, the Veteran stated on the record during the October 2012 hearing that he wished to withdraw from appeal the petition to reopen the claim of service connection for a left arm disability and the claims of service connection for a bilateral ankle disability and a skin disease. Although the Board has been unable to produce a written transcript of the hearing, the Veteran nonetheless withdrew the appeal as to these issues on the record during the hearing and there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues on appeal, and the appeal as to these issues is dismissed. Issues on Appeal The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In light of the Board's favorable decision in reopening the claim of service connection for a back disability and as the Board is granting the claim of service connection for residuals of a head injury, the claims are substantiated and there are no further VCAA duties at this time. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis 1. Petition to Reopen Generally, an RO decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(d)(3). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this case, the RO denied the Veteran's claim of service connection for a back disability in April 2003 because there was no medical evidence of any such disability. Specifically, it was explained that service treatment records included complaints of low back pain in 1979 and 1986, but that no diagnosis of a chronic back condition was identified. Also, the medical evidence of record failed to show that any back disability had been clinically diagnosed in the years since service. The Veteran was notified of the RO's decision, he did not appeal, and new and material evidence was not received within one year of the decision. Thus, the April 2003 decision became final. See 38 U.S.C.A. § 7105(d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Pertinent new evidence received since the April 2003 denial includes VA treatment records which include reports of chronic low back pain and X-ray findings of mild degenerative changes of the lumbosacral spine. Also, an October 2012 letter from Dr. Kenneth Register includes an opinion that the Veteran's spinal X-rays were representative of someone who had sustained trauma to the thoracic region and that his back disability was a service related problem. The additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by showing that the Veteran has a current back disability which may be related to service. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (evidence raises a reasonable possibility of substantiating a claim if it would trigger VA's duty to provide an examination). As discussed below, the evidence triggers VA's duty to provide an examination as to the etiology of the current back disability. The evidence is, therefore, new and material, and the claim of service connection for a back disability is reopened. 2. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (2012), including arthritis, is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2012). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b) (West 2002); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 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 this case, medical records reflect that the Veteran has been diagnosed as having various headache and cervical spine disabilities. For example, a May 2009 VA examination report and a September 2011 VA X-ray report include diagnoses of left supraorbital neuralgia, cervicogenic headaches, atypical tension type headaches of the left temple, mild to moderate degenerative changes at C5-C6 and C6-C7, and fusion of C2-C3. Thus, current headache and cervical spine disabilities have been demonstrated. Service treatment records include a May 1979 report of treatment for a 2 day history of headaches. The Veteran was playing baseball when he struck the right side of his head on another player's shoulder. He was reportedly unconscious for approximately 2 to 3 minutes. X-rays of the skull were negative. The Veteran has reported that he experienced headaches and neck pain in service following the May 1979 head injury and that such symptoms have continued in the years since that time. Thus, he contends that his current headaches and neck problems are related to the head injury in service. He is competent to report headaches and symptoms of a neck disability, such as pain, as well as a continuity of symptomatology. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d 1331 at 1337 (Fed. Cir. 2006). Moreover, there is nothing to explicitly contradict these reports, they are not inconsistent with the evidence of record, and there is no evidence of any post-service head or neck injuries. Thus, the reports of headaches and neck symptoms in the years since service are also deemed to be credible. There are conflicting medical opinions as to whether the Veteran has current residuals of a head injury in service. The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994). The physician who conducted the May 2009 VA examination diagnosed the Veteran as having, among other things, a resolved traumatic brain injury without residuals. He explained that there was no evidence of a residual head injury and that an opinion as to any such disability was, therefore, not warranted. With respect to the Veteran's headaches, the examiner opined that the headaches and supraorbital neuralgia pain were not caused by or a result of service. He reasoned that based upon a review of the Veteran's medical records and medical literature and his clinical experience, there was no evidence of any chronic problem, either in service or following separation, related to the Veteran's traumatic brain injury in service. His left temporal headaches which had reportedly been present ever since the in-service injury had never required medical attention and appeared to be on the opposite side of the in-service trauma. Such headaches may have been secondary to temporomandibular joint (TMJ) dysfunction or atypical tension type headaches. The other head pain symptoms had begun over the course of the previous 5 years and were totally unrelated to the head injury in service. Overall, the headaches could not be related to the head trauma in service in 1979. In his October 2012 letter, Dr. Register reported that the Veteran had been treated for severe neck pain and headaches and that he had reported that neck pain/difficulty and headaches had been present ever since service. He opined that it was likely ("more likely than not") that the Veteran's neck problems (identified as disc degenerative arthritis) began with his head trauma in service in 1979. This opinion was based on the fact that his spinal X-rays were representative of someone who had experienced trauma to the cervical spine region. The May 2009 and October 2012 opinions are both based upon examinations of the Veteran and a review of his reported history and are accompanied by specific rationales that are not inconsistent with the evidence of record. Thus, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Although the May 2009 examiner opined that the Veteran's headaches were not directly related to his head injury in service, he provided a diagnosis of headaches related to the cervical spine (i.e. cervicogenic headaches). The only opinion as to the etiology of the Veteran's current cervical spine disability is the October 2012 opinion by Dr. Register. As this opinion indicates that the current cervical spine disability is related to the Veteran's head injury in service, the weight of the evidence is in favor of a conclusion that the current cervical spine disability and associated headaches are related to service. Hence, the criteria for service connection for the currently diagnosed residuals of a head injury (including headaches and a cervical spine disability) have been met and service connection is granted. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303. ORDER The appeal, as to the issues of whether new and material evidence has been received to reopen a claim of service connection for a left arm disability and entitlement to service connection for a bilateral ankle disability and a skin disease, is dismissed. As new and material evidence has been received, the claim of service connection for a back disability is reopened, and the appeal is granted to this extent. Entitlement to service connection for residuals of a head injury, including headaches and a cervical spine disability, is granted. REMAND 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) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (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. In this case, the September 2011 VA X-ray report includes a diagnosis of mild degenerative changes in the lumbosacral spine. Thus, there is competent evidence of a current back disability. Service treatment records include a March 1979 report of treatment for back pain following heavy lifting. There was no history of any past trauma. A diagnosis of back muscle pain was provided. Also, the Veteran was treated for back pain on two occasions in June 1986. He reported that he had first experienced back pain while playing football approximately 10 years prior to the 1986 evaluations, and that back stiffness had present ever since that time. During one of the 1986 evaluations he specified that the pain was located on the left side of the thorax and that he had experienced a pneumothorax as a child. There was slight pain on palpation of the back, but a chest X-ray was normal. He was diagnosed as having low back pain. In his October 2012 letter, Dr. Register opined that the Veteran's "back condition" was a service related problem. He explained that the Veteran's spinal X-rays were representative of someone who had trauma to the thoracic region. In sum, there is competent evidence of a current back disability, treatment for back problems in service, and a medical opinion from Dr. Register that the Veteran's back problems were related to an in-service injury. However, Dr. Register specified that he had only treated the Veteran for severe neck pain and headaches, the only in-service injury discussed in his October 2012 letter is the head injury sustained in service in 1979, and the only diagnosis provided in his letter is "disc degenerative arthritis" of the neck. Therefore, it is unclear as to whether Dr. Register's opinion pertaining to the "back" was only in reference to the cervical spine, as opposed to the thoracic or lumbar spine. Nevertheless, in light of this opinion, VA's duty to obtain an examination as to the etiology of the Veteran's current back disability is triggered. Such an examination is needed to obtain a medical opinion as to whether the current back disability is related to service. Moreover, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). In his October 2012 letter, Dr. Register reported that the Veteran had been treated at Mink Chiropractic Center, LLC (Mink) in 2010 for neck pain and headaches and he made reference to spinal X-rays involving the thoracic spine. There are no treatment records from Mink in the claims file or among the Veteran's paperless records in the Virtual VA system. Also, a February 2008 VA nurse practitioner treatment note reveals that the Veteran was reportedly receiving private medical treatment for left eye problems. He has submitted some records of treatment for eye problems from Shands Jacksonville (Shands), but the evidence reflects that there are additional treatment records from this facility that have not yet been obtained. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain the records. If the Veteran does not provide the release, VA has undertaken to request that the Veteran obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not specifically been taken with regard to any additional relevant treatment records from Mink and Shands. Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Additionally, in an unappealed decision dated in May 1989 the RO determined that the character of the Veteran's service during the period from November 4, 1983 to November 18, 1988 was a bar to VA benefits as to that period because he was discharged under other than honorable conditions for the good of the service in lieu of Court Martial. The June 2009 rating decision includes a notation that he evidently received an upgraded discharge to honorable under secretarial authority for this period of service. However, there is no documentation in the claims file as to the circumstances of this upgrade or the authority under which the upgrade was granted. Inasmuch as the appeal is being remanded for other reasons, there is an opportunity to obtain records pertaining to this upgrade. Also, in the May 2008 rating decision the RO denied entitlement to service connection for an allergic reaction to the swine flu vaccine. In June 2008, the Veteran submitted a notice of disagreement with respect to this decision. A statement of the case has not been issued as to this issue. 38 U.S.C.A. § 7105(a) (West 2002). Thus, the Board is required to remand this issue for issuance of the necessary statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AOJ shall issue a statement of the case as to the issue of entitlement to service connection for an allergic reaction to the swine flu vaccine. This issue shall not be certified to the Board unless a sufficient substantive appeal is submitted. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received post-service treatment for a back disability, a left eye disability, and a bilateral knee disability, to include the dates of any such treatment. Also, ask him to complete authorizations for VA to obtain all records of his treatment for the above claimed disabilities from Mink Chiropractic Center, LLC, Shands Jacksonville, and any other identified private treatment provider. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA. Thereafter, obtain and associate with the claims file all records of the Veteran's treatment for a back disability, a left eye disability, and a bilateral knee disability contained in the Gainesville Vista electronic records system dated from December 2011 through the present, from Mink Chiropractic Center, LLC, from Shands Jacksonville, and from any other sufficiently identified VA or private medical facility. If any records are unavailable, the Veteran shall be notified of the identity of the putative records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claims, and he shall be advised to submit any records in his possession. All such notification must be documented in the claims file. 3. Contact the National Personnel Records Center, the Department of Defense, and/or any other appropriate source to obtain a copy of the Veteran's Official Military Personnel File and all records pertaining to his upgraded discharge for the period of service from November 4, 1983 to November 18, 1988. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records or service personnel records, schedule the Veteran for a VA examination to determine the etiology of his current back disability. All indicated tests and studies shall be conducted. The claims folder, including any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. For each current back disability identified (i.e. any thoracic or lumbar spine disability diagnosed since February 2007), the examiner shall answer the following question: Is it at least as likely as not (50 percent or greater probability) that the current back disability had its onset in service, had its onset in the year immediately following service (in the case of any current arthritis), is related to the Veteran's back problems in service in March 1979 and June 1986, is related to his head injury in service in May 1979, or is otherwise the result of a disease or injury in service? In formulating the above opinion, the examiner must acknowledge and comment on all back disabilities diagnosed since February 2007, all instances of treatment for back problems in the Veteran's service treatment records (including the treatment for back pain in March 1979 and June 1986), the Veteran's head injury in service in May 1979, and Dr. Register's October 2012 letter. The examiner must provide a rationale for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptomatology, the examiner must provide a reason for doing so. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 5. After conducting any additional indicated development, readjudicate the issues on appeal. If any benefit for which a sufficient substantive appeal has been submitted remains denied, the AOJ shall issue a supplemental statement of the case. Thereafter, the case shall be returned to the Board, if in order. 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 claim must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs