Citation Nr: 1318803 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 04-37 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral foot disabilities. 3. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to April 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veterans Law Judge who conducted the May 2008 Travel Board hearing is no longer employed by the Board (a transcript of that hearing has been associated with the claims file). In March 2013, the Veteran was afforded the opportunity for a new hearing. He was notified that if he did not respond within 30 days it would be assumed he did not want a new hearing. The Veteran did not respond. As such, there are no outstanding hearing requests of record. The Board remanded these claims for additional development in August 2008, April 2010, and again in November 2011. The January 2004 rating decision denied the Veteran's claim for service connection for depression and stress. The evidence shows that he has been diagnosed with a panic disorder. Case law now provides that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Thus, pursuant to the holding in Clemons, the Board has more broadly characterized the Veteran's psychiatric claim on appeal as one of entitlement to service connection for an acquired psychiatric disability, however diagnosed. The issue of service connection for an acquired psychiatric disability, to include as secondary to service-connected disabilities is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Chronic low back strain had its onset in service. 2. The Veteran does not have a right hip disability which is causally related to active duty service; a left hip disability has not been diagnosed; the Veteran does not have a bilateral hip disability which is causally related to a service-connected disability, to include by aggravation. CONCLUSIONS OF LAW 1. Low back strain was incurred in active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. A bilateral hip disability was not incurred in or aggravated by the Veteran's active duty service, nor is a bilateral hip disability proximately due to or caused by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. § 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R.§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The record shows that in an October 2003 VCAA letter, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO provided VCAA notice to the Veteran in October 2003, which was prior to the January 2004 rating decision. That letter explained the evidence necessary to substantiate the Veteran's claims for direct service connection, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A March 2006 letter informed the Veteran of disability rating and effective date criteria. See Id. A November 2008 letter explained what the evidence must show in order to support the Veteran's claims based upon an additional disability that was caused or aggravated by a service-connected disability. Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claims on appeal have been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party challenging the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist The Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The Veteran's service treatment records have been obtained and associated with the claims file. Also, his VA treatment records (including those associated with his Virtual VA) have been reviewed; he has not otherwise reported additional treatment for the claimed disorders. He was afforded VA examinations in August 2009, August 2012, and November 2012 the reports of which are of record. In November 2012 the Appeals Management Center sought clarification on the VA examinations for a psychiatric disability and low back and hip disabilities. A November 2012 clarification opinion was provided by a VA physician. The Board finds that the 2009, and 2012 examinations along with the November 2012 clarification opinion are adequate for rating purposes. Specifically, the examination reports and opinion contain sufficient evidence by which to evaluate the Veteran's claims in the context of the rating criteria. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, 18 Vet. App. 112; Quartuccio, 16 Vet. App. 183; Dingess, 19 Vet. App. 473. Legal Criteria, Factual Background and Analysis Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Moreover, under 38 C.F.R. § 3.303(b), the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Also, in the context of, for example, arthritis, such disorder may also be presumed to have been incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection is warranted where a disability is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires: (1) Competent evidence (a medical diagnosis) of a current disability (for which secondary service connection is sought); (2) evidence of a service connected disability; and (3) competent evidence that the current disability was either (a) caused or (aggravated) by the service connected disability. 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995). Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation providing for compensation benefits. 38 C.F.R. § 3.303(c); see also, Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (upholding VA's regulation that a congenital disorder is not a disease or injury as contemplated by 38 U.S.C.A. §§ 1110, 1131). Service connection may be granted for congenital diseases, as opposed to congenital defects. See 38 C.F.R. § 3.303(c); VAOPGCPREC 67-90, VAOPGCPREC82-90. VA regulations specifically prohibit service connection for congenital defects unless such defect was subjected to a superimposed disease or injury during service which created additional disability. See VAOPGCPREC 82-90. If a defect is subject to superimposed disease or injury, service connection may be warranted for the resultant disability. Id. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file, and in the Veteran's "Virtual VA" electronic claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. Low Back Disability Service treatment records show that in a May 1980 medical record (Occupational Health History) the Veteran indicated that he had chronic joint pain (back, neck arm, leg). In March 1982 he was seen with complaints of low back pain for three days from lifting things on the job. The assessment was lower back strain. In April 1986 he was seen at the clinic with complaints of back pain. He stated that in the morning when he stood-up he felt a sharp pain in his lower back and subsequently his lower back was "stiff". While clinical evaluation at his April 1991 discharge medical examination revealed a normal spine, his April 1991 report of medical history noted he had recurrent back pain. Postservice, in a June 2004 VA physical medicine and rehabilitation consult report, the Veteran was diagnosed with degenerative joint disease of the lumbar spine with associated low back pain. A September 2004 MRI [magnetic resonance imaging] showed mild spinal canal stenosis due to a combination of congenital short pedicles and epidural lipomatosis. In a January 2006 addendum to a VA physical medicine and rehabilitation report, it was noted that the Veteran's examination report was reviewed and the primary active problems were related to hip degenerative joint disease and congenital spinal canal narrowing. On August 2009 VA examination, the Veteran reported having several episodes of back pain in the military. He stated that the pain is located in the mid to right lower back and described as an aching, tired, stiff pain. He had not had a significant back injury and no invasive interventions or treatments had been tried. The examiner noted that the Veteran had two episodes of back pain noted in military records. These episodes of pain appear to have been minor and the diagnosis of back strain was made. There are no indications of any sequela in the record. The examiner further noted that he could not connect the Veteran's current complaints of pain with his current back disability based on available records. He opined that it is less likely than not that the current low back disability was aggravated by the service-connected disability of residuals of a foot injury. His reasoning was that the Veteran's gait was relatively normal and would not be expected to affect the back unless it was severe enough to cause a major gait disturbance over a long, sustained period of time. He concluded that it was less likely than not that the current back disability was service-related. It was also less likely than not that the current back disability was aggravated by service-connected disabilities. On August 2012 VA examination of the spine, the Veteran reported that he had occasional bilateral lower back pain that was dull to sharp, non-radiating, and no bowel or bladder changes. He was diagnosed with lumbosacral strain. X-rays showed mild to moderate degenerative changes of the lower lumbar spine. The examiner opined that the claimed low back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale for the opinion was that service treatment records showed no treatment for a low back disability. VA treatment records show conservative treatment for the low back. The Veteran did not recollect a specific low back injury in service. He had conservative treatment for a musculoligamanentous back injury, and no orthopedic treatment or injections. In a November 2012 VA opinion clarification, the medical reviewer noted review of the claims file, active duty medical records, VA electronic medical records, and other medical records contained in the claims file, including VA examinations, and medical literature. He opined that the Veteran has a current diagnosis of low back strain. He stated that MRI findings of congenital spine defect of congenital short pedicles are partially responsible for his spinal stenosis of the lumbosacral spine. The Veteran also has an MRI finding of epidural lipomatosis of the lumbosacral spine, a disease, and he has an additional diagnosed back disability of low back strain, which despite considering his in-service treatment and report of continuous pain since that time, it is less likely than not (less than 50 percent probability) that his low back strain (and associated pain) was incurred in or caused by the claimed in-service injury to his back in 1982. However, with respect to his epidural lipomatosis, a disease, which progressed naturally, and was not aggravated by the Veteran's service, it is at least as likely as not (50 percent probability or greater) its progression permanently worsened (aggravated) the Veteran's complaints of low back pain due to his back strain. The baseline was an acute low back strain in 1982 with initial resolution; the aggravation resulted in continuous low back pain that continues to the present. His rationale was that the Veteran was diagnosed on August 2012 VA examination with low back strain. He was evaluated for a single episode of low back pain in 1982 (after "lifting things on the job," "does not recall over exertion"). Such low back injury occurred early in the Veteran's active duty military career. He had no subsequent evaluations or complaints until he listed recurrent back pain on his end-of-term service physical, which was uncommented on by the physician. MRI (September 2004) of the lumbosacral spine revealed mild spinal canal stenosis at the L2-3 and L3-4 levels due to a combination of congenital short pedicles and epidural lipomatosis. As the name implies the short pedicles are a congenital defect. The epidural lipomatosis is a condition that can progress, and therefore a disease, by VA definition. It appears that the Veteran has three different low back disorders, and the Board must determine is service connection is warranted for any or all such disorders. Based on the evidence, the Board finds that service connection is not warranted for the congenital short pedicles of the lumbosacral spine since such is a congenital defect and thus not a disability for VA purposes. The VA examiner's opinion that the epidural lipomatosis (which is a disease and thus able to be service-connected) is not at least as likely as not related to service is persuasive. There is no supporting evidence of any aggravation of the disease during service. As such service connection for this congenital disease is not warranted. The evidence regarding low back strain is certainly not compelling. One reading of the evidence from a longitudinal perspective is that the low back strain during service was an acute incident which fully resolved with the currently diagnosed low back strain having developed many years after service. However, the Veteran did give a history of low back pain on discharge from service. Moreover, when seeking treatment at a VA facility in June 2004 he reported that he had has low back pain for the previous 15 years from shortly after the time he injured his left ankle. This would place the onset of low back pain to the late 1980's during the Veteran's service. Service treatment records do show casting for a left ankle injury in 1982. Although this is somewhat inconsistent with the time-frame reported by the Veteran, it is evidence in support of the left ankle injury. The Board has reviewed the evidence regarding low back strain and believes that a reasonable doubt exists as to whether the current low back strain is related to service. By law, such reasonable doubt must be resolved in the Veteran's favor. 38 C.F.R. § 3.102. Accordingly, service connection for low back strain is warranted. Bilateral Hip Disability The Veteran has claimed entitlement to service connection for a bilateral hip disability to include as secondary to his service-connected bilateral foot disabilities. Since service connection has now been granted for a low back disability (as a result of the present Board decision), the question of secondary service connection with regard to the low back strain must also be considered. The Board notes that the Veteran is not prejudiced by the Board's consideration of the matter of service connection secondary to the low back disability as the question has been addressed by a VA examiner and the RO considered the matter in the first instance in the November 2012 supplemental statement of the case. Service treatment records are silent for a bilateral hip disability of any kind. On April 1991 discharge medical examination, clinical evaluation revealed normal lower extremities and musculoskeletal. The Veteran's April 1991 report of medical history shows he had cramps in his legs, broken bones, and bone, joint or other deformity, but none of these conditions were related to his hips. He denied ever having arthritis. Postservice, the Veteran underwent a VA examination in July 1991, there was no mention of a bilateral hip disorder. April 2004 x-rays of the right hip showed mild joint space narrowing of the left hip and was otherwise unremarkable (it is noted that imaging of the right hip was unclear as reference was made to the left hip instead of the right). August 2004 x-rays show mild right hip degenerative joint disease involving bilateral hip joints. An August 2004 VA physical medicine and rehabilitation report noted right lower extremity pain likely due to right hip pathology. On August 2009 VA examination, the Veteran reported that he began having pain in his right hip around the same time as he was having pain in his lower back in the early 1990's. The examiner noted that the Veteran's bilateral hip pain was more likely than not secondary to osteoarthritis. The examiner noted that he did not find reference to bilateral hip disorder in the Veteran's military record nor other evidence to suggest it is service related. Further, he found no evidence that the service-connected foot disability caused hip problems. This opinion was based on the Veteran having a relatively normal gait that would not be expected to affect the hips unless it was severe enough to cause a major gait disturbance over a long, sustained period of time. The examiner concluded that it is less likely than not that the current hip disability is service related. It is also less likely than not that the current hip disability was aggravated by service-connected disabilities. On August 2012 VA examination (pursuant to Board remand) the Veteran was diagnosed with right hip sprain. X-rays of the right hip were unremarkable. There was no objective evidence of a clinical diagnosis of a left hip disability. In a November 2012 VA opinion clarification, the medical reviewer noted review of the claims file, active duty medical records, and VA electronic medical records, other medical records contained in the claims file, including VA examinations, and medical literature. He opined that the Veteran has a current diagnosis of right hip strain. He noted that in his opinion the Veteran's claimed disability of right hip strain was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. It was also his opinion that the Veteran's right hip strain was less likely than not proximately due to or the result or aggravated by the Veteran's service-connected low back disability or low back strain. There is no connection between the Veteran's service connected pes planus and his right hip strain. The rationale was that the Veteran had no complaints or evaluation for right hip pain documented while on active duty. On review, the Board finds that a bilateral hip disability was not incurred in or aggravated by the Veteran's active duty service. Further, the preponderance of the evidence indicates that the Veteran does not have a left hip disability. On August 2009 the Veteran reported having right hip pain. At that time there was no mention of a left hip symptoms. On August 2012 VA examination the Veteran was diagnosed with right hip sprain. There is no objective evidence of a clinical diagnosis of a left hip disability. In the absence of a currently diagnosed disability, service connection cannot be granted for a left hip disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran has been diagnosed with a right hip disability the evidence is against finding that a right hip disability is related to service or an incident therein. Service treatment records are silent for any complaints, treatment or diagnosis of a right hip disability. When the Veteran was examined by VA postservice in July 1991, just months after his discharge from active duty, he did not mention having any problems with his hip. The first mention of a right hip disability was in 2004, which is approximately 13 years postservice. Such a lengthy period without evidence of treatment may be viewed as evidence weighing against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Based on the foregoing, service connection for a right hip disability on the basis that it was manifested in service and persisted is not warranted. Furthermore, the competent evidence of record does not support a nexus between the Veteran's claimed right hip disability and his military service. VA examiner in August 2009 opined that the Veteran's current hip disability is less likely than not service related. He further opined that it was less likely than not that the current hip disability was aggravated by service-connected disabilities. The November 2012 VA medical reviewer made similar findings on the bases that the Veteran had no complaints or evaluation for right hip pain documented while on active duty. The Board finds the November 2012 VA clarification opinion highly probative and adequate for rating purposes, as it presents a competent medical opinion and rationale informed by review of the pertinent evidence including reports of examination of the Veteran. The competent evidence of record weighs significantly against the claim of entitlement to service connection for a right/bilateral hip disability; and there are no opinions to the contrary of record. Based on these findings, service connection is not warranted for a right/bilateral hip disability. The Board recognizes that the Veteran has also claimed that the problem with his hips was caused by his service-connected bilateral foot disabilities. Additionally, a claim of service connection secondary to a low back disability has also been raised. The probative medical evidence in this case establishes that the Veteran's disability of the hips is not secondary to a service-connected disability. The August 2009 examiner opined that it is less likely than not that the current hip disability was aggravated by service-connected disabilities. The November 2012 VA medical reviewer opined that the Veteran's right hip strain was less likely than not proximately due to, or the result, or aggravated by the Veteran's service-connected low back disability or low back strain; and he opined that there was no connection between the Veteran's service-connected pes planus and his right hip strain. These opinions contain a competent medical opinion addressing the pertinent etiological question with a clear conclusion and analytical rationale. The August 2009 examiner based his opinion on direct inspection and interview of the Veteran and acceptance of the Veteran's own details of his symptom experience and history. The Board has reviewed the entirety of the evidence of record and finds that there is no competent evidence of record which contradicts the findings presented in the August 2009 examination report. The August 2009 examiner's opinion, and that of the November 2012 medical reviewer is clear in finding no relationship between the bilateral hip disability and the service-connected disabilities. The Board recognizes that the Veteran is competent to proffer lay statements to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Robinson v. Shinseki, 312 Fed. Appx. 336 (Fed. Cir. 2009) (non-precedential) (confirming that, 'in some cases, lay evidence will be competent and credible evidence of etiology'). However, a determination concerning the possibility of a causal relationship between a bilateral hip disability and bilateral foot/low back disability requires specialized training, and may therefore not be established by lay opinions on etiology. Furthermore, the competent medical evidence of record weighs against any such findings. The preponderance of the evidence in this case is against finding that the Veteran's claimed bilateral hip disability was manifested in service or otherwise related to service, or secondary to or aggravated by his service-connected disabilities (bilateral foot/low back disability) or any service-connected disability. There is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). ORDER The appeal is granted in part and denied in part as follows: Service connection for low back strain is warranted. Service connection for bilateral hip disability, including as secondary to a service-connected disability, is not warranted. REMAND Regarding the Veteran's claim of service connection for an acquired psychiatric disability, regrettably, additional development is necessary prior to appellate review. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has indicated that he is seeking service connection for an acquired psychiatric disability on both a direct basis and as secondary to service-connected disabilities. The RO has adjudicated the Veteran's claim of service connection for an acquired psychiatric disability as secondary to bilateral foot disabilities. As result of the present Board decision, the Veteran is now service-connected for low back strain. At his May 2008 Board hearing he testified essentially that he is depressed because of the pain he is experiencing (from his service-connected disabilities). While the RO has adjudicated the claim for service connection for an acquired psychiatric disability as secondary to the service-connected bilateral foot disabilities, it has not adjudicated the matter of service connection for an acquired psychiatric disability as secondary to the now service-connected low back disability. The Board must remand for an opinion on this matter. Accordingly, the case is REMANDED for the following action: 1. The RO should be scheduled for an appropriate VA psychiatric examination. It is imperative that the claims file be made available to the examiner for review. The examiner should offers responses to the following questions: a) Is it is at least as likely as not (50 percent probability or higher) that the Veteran's current acquired psychiatric disability is caused by any, or a combination, of the Veteran's service-connected disabilities (to now include low back strain)? b) Is it is at least as likely as not (50 percent probability or higher) that the Veteran's current acquired psychiatric has been aggravated by any, or a combination, of the Veteran's service-connected disabilities (to now include low back strain)? The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 2. Then readjudicate the claim for service connection for an acquired psychiatric disability as secondary to service-connected disability. If the claim is not granted, send the Veteran and his representative a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. 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 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs