Citation Nr: 1319000 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 06-36 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to a service-connected psychiatric disability and/or due to Agent Orange exposure. 2. Entitlement to service connection for a lumbar spine disorder as secondary to service-connected bilateral feet and ankle disorders. 3. Entitlement to service connection for a right knee disorder as secondary to service-connected bilateral feet and ankle disorders. 4. Entitlement to service connection for a left knee disorder as secondary to service-connected bilateral feet and ankle disorders. 5. Entitlement to service connection for a cervical spine disorder as secondary to service-connected bilateral feet and ankle disorders. 6. Entitlement to service connection for post-phlebitic syndrome, right lower extremity, as secondary to service-connected bilateral feet and ankle disorders. 7. Entitlement to service connection for post-phlebitic syndrome, left lower extremity, as secondary to service-connected bilateral feet and ankle disorders. 8. Entitlement to service connection for sleep apnea, to include as due to Agent Orange exposure. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and V.W. ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to June 1963 and from August 1963 to July 1966. His DD 214 confirms that he served in the Republic of Vietnam during the Vietnam era. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2006, November 2008, and June 2009 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2010, the Veteran appeared at a hearing before the undersigned. A transcript of the hearing is in the record. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. In April 2013, a waiver for RO review was received from the Veteran for additionally submitted evidence. In April 2011 and in January 2013, the Board remanded the issues for further development. As the requested development has not been completed, with the exception of the issues of service connection for hypertension and sleep apnea, further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore these issues 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. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Hypertension did not manifest in service, within the one year presumptive period or for many years thereafter, and is not otherwise related to service, to include exposure to herbicide agents. 2. Hypertension is not shown to have been caused or aggravated by the service-connected anxiety disorder. 3. Sleep apnea did not manifest in service or for many years thereafter, and is not otherwise related to service, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by military service, nor may it be presumed to have been incurred therein, nor may it be presumed to have been so incurred as due to herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Hypertension is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). 3. Sleep apnea was not incurred in or aggravated by military service, nor may it be presumed to have been so incurred as due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The RO provided pre-adjudication VCAA notice by letters dated in April 2005, March 2006, and in August 2008. The Veteran was notified of the evidence needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim. In January 2013, the Veteran was provided a post-adjudication VCAA notice letter that notified him of the evidence needed to substantiate service connection on a secondary basis. The timing of the notice did not comply with the requirement that the notice must precede the adjudication, but this procedural defect was cured because the letter provided the required substance and the issue was readjudicated in an April 2013 supplemental statement of the case. See Prickett, 20 Vet. App. at 376. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. Service treatment records (STRs), available post-service treatment records, lay statements, and hearing transcripts have been associated with the record. A review of the file indicates that some VA records are not associated with the claims file. An April 2006 formal finding of unavailability of VA records from the Houston VA Medical Center from January 1, 1987 to December 31, 1993 noted the efforts made to obtain these records. Additionally, notice provided to the Veteran in March 2006. See 38 C.F.R. § 3.159(e). In May 2006, the Veteran stated that he had a sleep study before 1987 at the VA Medical Center in Houston, Texas. A letter in June 2006 requested more information concerning the sleep study prior to 1987, however the Veteran did not reply. "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Furthermore, there is an October 2008 formal finding of unavailability of records from the Central VA Health Care System for the period from January 1, 1983 to September 17, 1992; notice on this matter was provided to the Veteran that same month. The Veteran was most recently afforded a VA examination for hypertension in August 2012 and a VA opinion was obtained in February 2013. He was accorded a VA examination for sleep apnea in May 2011 and an accompanying VA opinion was rendered in March 2013. The opinions are fully adequate to adjudicate the claims as they are based upon a review of the relevant information and contain supporting rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, with respect to the Veteran's claims, there is no additional evidence which needs to be obtained. Legal Criteria for Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hypertension, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In making its determination, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). Regarding sleep apnea, this provision is inapplicable as that claim was filed prior to October 10, 2006. However, this provision is applicable to hypertension; the Veteran's claim for service connection for hypertension was filed after October 10, 2006. See generally Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Direct Service Connection Analysis As the Veteran served in Vietnam, it is presumed that he was exposed to Agent Orange. See 38 U.S.C.A. § 1116. In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The current list of diseases subject to presumptive service connection does not include hypertension or sleep apnea. 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e). Notwithstanding the foregoing, the Veteran may still establish service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). "Of particular relevance to an analysis of medical evidence supporting such a nexus are factors such as whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner." Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009). A statistical correlation between Agent Orange and a disease not on the presumptive list may not be the only basis for a positive nexus opinion; it may be part of the analysis, but the entirety of the analysis provided by the medical professional must be weighed and considered. Polovick, 23 Vet. App. at 53-54. Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a general matter, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (noting that a categorical statement that a valid medical opinion was required to establish nexus, and that a layperson was not competent to provide testimony as to nexus as a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (providing that lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record); Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). In December 2007, the Veteran filed a claim of service connection for hypertension, secondary to Agent Orange exposure. He contends that he was first diagnosed with hypertension five years earlier, in 2002, and it was related to Agent Orange exposure during his service in Vietnam. As for sleep apnea, the Veteran contends that he has had sleep apnea since service. For VA purposes, hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). STRs show that the Veteran's blood pressure was essentially normal. On induction examination in August 1961 it was 130/80, on separation examination in May 1963 it was 118/64, and in October 1963 it was 140/74, 136/80, and 132/84. On separation examination in July 1966 it was 120/80. On the accompanying report of medical history, the Veteran denied having high blood pressure. STRs show the Veteran was treated for an upper respiratory infection in May 1963 and complained of hayfever on the report of medical history in May 1963, however his lungs, chest, nose and sinuses were normal on separation examination in May 1963 and in July 1963. There is no documentation of sleep apnea or a sleep disorder. VA hospital records in November 1981 show no history of hypertension and the Veteran's blood pressure was 124/80. VA records show that hypertension was diagnosed in June 2002. In April 2008 at a RO hearing, the Veteran testified that his sleep apnea began in 1962 or 1963 during service in Korea and his bunk mates complained about his snoring, however he was not treated for sleep apnea during service. He stated that he was sent to a sleep lab approximately in the 1990s and was diagnosed with sleep apnea. During the hearing the Veteran stated that he saw a doctor during service for his snoring problem and was given a nasal spray; the Board does not find this statement credible because it is inconsistent with his testimony that he was not treated for a sleep disorder during service. During the Board hearing in July 2010, the Veteran again stated that he was not treated for sleep apnea during service and testified that he was diagnosed with the disorder in the 1990s at the VA Medical Center in Houston, Texas. He asserted that he did not discuss with any doctor whether sleep apnea was related to his Agent Orange exposure in Vietnam. VA medical records from 1994 to the present show sleep apnea. A private polysomnography interpretation in June 2004 shows severe obstructive sleep apnea. On VA examination in August 2012, the Veteran reported having hypertension and being treated for it during service in Vietnam. He claimed that he has been taking blood pressure medication since service. The examiner noted that there was no documentation in the Veteran's service treatment records that he had hypertension and he had only one elevated blood pressure reading of 140/74 in 1963. His blood pressure was normal on separation examination. In an opinion in February 2013, a VA examiner concluded that hypertension was less likely than not incurred in or caused by service. She indicated that hypertension is not an Agent Orange presumptive disability and explained that in the majority of patients with hypertension there is no known cause however it is known that arterial walls with age tend to lose elasticity making the vessels more rigid and causing blood pressure to rise. She noted that the Veteran was diagnosed with hypertension in 2002 when he was 67 years old, which is not an unusual age to be diagnosed with hypertension. She explained that there was no causal relationship between hypertension and Agent Orange exposure. In a March 2013 VA opinion, the examiner concluded that the Veteran continues to have sleep apnea which was less likely than not incurred in or caused by service. The rationale was that the Veteran was diagnosed with sleep apnea in 1986 and had multiple studies done over the years. However, sleep studies were not done in the military nor was a diagnosis of sleep apnea documented in the STRs. She noted that the Veteran was never seen by a medical professional for insomnia or sleep problems during service. As for a causal relationship between sleep apnea and Agent Orange exposure in Vietnam, the examiner explained that there is no proof that Agent Orange has any cause/effect relationship with sleep apnea. As a lay person, the Veteran is competent to state that he has had symptoms of hypertension and sleep apnea and his statements that he has had these symptoms are credible. To the extent that the Veteran has stated that he has had hypertension since service, his contention is not credible because it is inconsistent with his report of medical history upon discharge from service in July 1966, where he denied having high blood pressure, and his statement in December 2007 asserting that he was diagnosed with hypertension in 2002. In this case, the onset and etiology of hypertension and sleep apnea are medical issues that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the Veteran is not competent to provide this type of testimony. Additionally, the Veteran's assertions that his hypertension and sleep apnea are related to service, to include Agent Orange exposure in Vietnam, are outweighed by the VA opinions in February 2013 and March 2013, whereby the examiner concluded that hypertension and sleep apnea were less likely than not incurred in or caused by service, to include exposure to Agent Orange. These opinions are highly probative as they reflected the VA examiner's knowledge, training, and experience as to the etiology of the Veteran's hypertension and sleep apnea. The opinions were based on medical principles and applied to the facts of the case. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). The VA examiner, a staff physician, considered the nature of the Veteran's hypertension and sleep apnea, history and relevant longitudinal complaints in proffering the opinions. Further, the VA opinions are consistent with the other evidence of record. The blood pressure readings during service were essentially normal and inconsistent with a hypertensive disability. See 38 C.F.R. § 4.104. The lack of complaints, treatment, or diagnoses of hypertension or sleep problems until many years after service, supports the conclusion that hypertension and sleep apnea did not manifest in service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (noting that the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). As the probative evidence does not indicate that hypertension was manifested within one year of service, or for many years thereafter, service connection on a presumptive basis is not available. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. For these reasons there also is no basis for a finding of continuity of symptomatology of hypertension since service under 38 C.F.R. § 3.303(b). As sleep apnea is not included among the chronic diseases under 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a), consideration of continuity of symptomatology under 38 C.F.R. § 3.303(b) with regards to sleep apnea is not applicable. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board thus finds that the claim for service connection for hypertension and sleep apnea, to include as due to Agent Orange exposure, is not warranted. See 38 C.F.R. 3.303(d), 3.309(e); Combee, 34 F.3d at 1042. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Secondary Service Connection for Hypertension In December 2009, the Veteran claimed that his hypertension was related to his posttraumatic stress disorder (PTSD). In July 2010, the Veteran testified that a doctor told him that hypertension was related to his PTSD. The Board notes that the Veteran is service-connected for a psychiatric disorder diagnosed as anxiety disorder and thus his claim for service connection for hypertension is also being considered as secondary to a service-connected psychiatric disorder. In the addendum opinion in September 2012, a VA examiner stated that based on his clinical experience and judgment, he did not believe the Veteran's longstanding hypertension, which was under very adequate control, has been caused by his psychiatric disorder nor aggravated by it. In an opinion in February 2013, another VA examiner concluded that hypertension was not caused or aggravated by the service-connected anxiety disorder because the Veteran's blood pressure varied frequently but the average was maintained. The examiner noted that since 1998 (prior to the 2002 hypertension diagnosis) there has not been a significant change with constant elevation or aggravation related to anxiety. The examiner further explained that the service-connected anxiety did not cause hypertension as anxiety is not a risk factor for the diagnosis of essential hypertension. As for the Veteran's testimony that a doctor told him that hypertension was related to his PTSD, lay evidence is competent when reporting a contemporaneous diagnosis. Jandreau v. Nicholson, 492 F3d. 1372, 1377 (2007). However, in the instant case the Veteran has been granted service connection for anxiety disorder, he is not service connected for PTSD. Therefore his testimony regarding the relationship between hypertension and PTSD does little to support his claim. In addition, the Veteran's lay opinion is outweighed by the February 2013 VA examiner's opinion that hypertension was not caused or aggravated by the service-connected anxiety disorder because anxiety is not a risk factor for hypertension and average blood pressure readings have been maintained and not aggravated. The VA examiner, a staff physician, considered the nature of the Veteran's hypertension, history and relevant longitudinal complaints in proffering her opinion. Whether a psychiatric disorder would cause or aggravate high blood pressure is a complex medical issue that requires scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. See Layno, 6 Vet. App. at 469. Thus, the medical opinion has greater weight. In sum, the Board finds that the most probative evidence establishes that the Veteran's anxiety disorder does not cause or aggravate his hypertension. Therefore, the preponderance of the evidence is against the claim for hypertension as secondary to a service connected disability. Because there is no approximate balance of positive and negative evidence, the rule affording the Veteran the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West 2002); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. ORDER Service connection for hypertension, to include as due to Agent Orange exposure and secondary to a psychiatric disability, is denied. Service connection for sleep apnea, to include as due to Agent Orange exposure, is denied. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain adequate etiological opinions. Lumbar Spine, Right Knee, Left Knee, and Cervical Spine A Court or Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-124 (2007). Stefl, 21 Vet. App. at 123-24. Further, a medical opinion's probative value is based in the rationale provided. Nieves Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). Here, remand is required because the examinations did not fully comply with the prior Board remand. On VA examination in May 2011, the examiner opined that it was less likely as not that degenerative joint disease of the knees, a lumbar spine disorder, or a cervical spine disorder was caused by or a result of service-connected bilateral feet and ankle conditions. In January 2013, the Board remanded these issues for an examiner to opine whether it is at least as likely as not that the Veteran's lumbar spine, cervical spine, and bilateral knee disorder was either caused by or aggravated by his service-connected bilateral foot disorder, bilateral ankle disorder, or a combination of both the service-connected disorders and to comment on the conflicting opinions in the file. Although opinions were obtained in March 2013, the examiner did not address whether the lumbar spine, cervical spine, and knees were aggravated by his service-connected bilateral foot disorder and bilateral ankle disorder nor provide comment on the conflicting medical opinions in the claims folder. In a March 2013 opinion the examiner concluded that the conditions are less likely than not due to or the result of the Veteran's service-connected conditions. As for the lumbar spine, the rationale was that the Veteran has 6 lumbar vertebrae which is a congenital condition and the most likely cause of problems in his low back. As for the cervical spine, the examiner noted that a x-ray report in 2005 shows a normal spine however a x-ray in 2007 shows scoliosis and the examiner explained that muscle spasm is the usual cause of scoliosis rather than gait problems. As for the knees, the examiner noted that there is x-ray evidence of arthritis and pseudogout and pseudogout is not related to any foot or ankle problem. The examiner further explained that the Veteran intermittently walked with an antalgic gait and the antalgic gait would have to be constant in order for the spine and knees to be affected. Thus the examiner must render addendum opinions to address aggravation. Post-Phlebitic Syndrome of the Lower Extremities On VA examination in May 2011, the examiner opined that the Veteran did not have post-phlebitic syndrome and that his bilateral lower extremity condition was less likely as not caused by or a result of his service-connected bilateral foot or ankle condition. In January 2013, the Board noted that during the appeal period the Veteran in November 2005 had a diagnosis of post-phlebitic syndrome of both lower extremities. The Board remanded the issues for an opinion as to whether the Veteran had post-phlebitic syndrome of the lower extremities at any time since he filed his claim in 2005 and whether it is at least as likely as not that the post-phlebitic syndrome of the lower extremities was either caused or aggravated by his service-connected bilateral foot disorder, bilateral ankle disorder, or a combination of both the service-connected disorders. The examiner was asked to comment on the significance of the May 2008 private opinion from MSS noting that it was more likely than not that the post-phlebitic syndrome of the lower extremities was related to the service-connected bilateral foot disorder. The examiner in March 2013 rendered an opinion that the condition is less likely than not proximately due to or the result of the Veteran's service-connected conditions based on the rationale that the Veteran developed phlebitis in his legs years after he was diagnosed with deep venous thrombosis (DVT) in his left leg in August 1995 and the foot and ankle problems are not risk factors for the development of DVT unless they result in immobility and or venous stasis. The examiner noted the Veteran continues to take anticoagulant to prevent DVT. As the examiner implicitly acknowledged, then, the Veteran had post-phlebitic syndrome in his lower extremities but did not address whether the post-phlebitis syndrome of the lower extremities was aggravated by the service-connected bilateral foot disorder and bilateral ankle disorder. This must be remedied on remand. 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. Return the claims file to the examiner who conducted the VA examination in May 2011 and rendered the opinion in March 2013 regarding the lumbar spine, cervical spine, and knee disorders. If this examiner is not available, the Veteran's claim folder should be reviewed by another appropriate examiner. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner. The examiner is asked to provide a full explanation for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. The examiner must provide an opinion whether it is at least as likely as not (50 percent probability or more) that the Veteran's lumbar spine, cervical spine, and bilateral knee disorders are aggravated by his service-connected bilateral foot disorder, bilateral ankle disorder, or a combination of those service-connected disorders. The examiner is asked to comment on whether some of the increase in severity is due to natural progress of the disease, and if so the examiner should identify the degree of increase in severity due to natural progression. The examiner must comment on the following conflicting medical opinions of record: the November 2005 and July 2007 VA examination reports indicating that the bilateral lower extremity, cervical spine, and lumbar spine disorders were unrelated to the service-connected feet disorders; the March 2005 statement from LE noting that the lumbar spine, cervical spine, and bilateral lower extremity disorder were at least as likely as not related to the in-service feet problem that altered the Veteran's gait; the April 2005 statement from LE indicating that the Veteran's feet and ankle problems will continue to aggravate his lumbar spine condition; the September 2006 statement from KW noting that the damage to the Veteran's feet and ankles caused his back and leg problems due to an altered gait; the May 2008 statement from MSS noting that it was more likely than not that all the disabilities were related to the service-connected feet disorder; the February 2009 statement from LE noting that as a result of a previous ankle and foot injury, the Veteran's gait was altered and the altered gait resulted in low back pain. 2. Return the claims file to the examiner who conducted the VA examination in May 2011 and rendered the opinion in March 2013 regarding post-phlebitic syndrome of the lower extremities. If this examiner is not available, the Veteran's claim folder should be reviewed by another appropriate examiner. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner. The examiner is asked to provide an explanation for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's post-phlebitic syndrome of the lower extremities was aggravated by his service-connected bilateral foot disorder, bilateral ankle disorder, or a combination of those service-connected disorders. The examiner is asked to comment on whether some of the increase in severity is due to natural progress of the disease, and if so the examiner should identify the degree of increase in severity due to natural progression. The examiner must comment on the significance of the May 2008 statement from MSS noting that it was more likely than not that the post-phlebitic syndrome of the lower extremities was related to the service-connected bilateral foot disorder. The examiner is advised that in volume 2 of the claims folder, the May 2008 private opinion from MSS appears to be in response to the query posed on the previous page as to whether the post-phlebitic syndrome of the lower extremities was secondary to his service-connected bilateral metatarsalgia. 3. If the benefits sought on appeal remain denied, issue the Veteran and his representative a supplemental statement of the case before the claims file is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs