Citation Nr: 1322087 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 04-09 854 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as secondary to the Veteran's service-connected disabilities. 2. Entitlement to service connection for a right hip condition, to include as secondary to the Veteran's service-connected disabilities. 3. Entitlement to service connection for a left hip condition, to include as secondary to the Veteran's service-connected disabilities. 4. Entitlement to service connection for a right ankle disorder, to include as secondary to the Veteran's service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from September 1957 to September 1973. He had additional reserve service from May 1987 to April 1999. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision by which the RO, in pertinent part, denied entitlement to the benefits sought herein. The Board remanded the issues on appeal in March 2006, May 2009, December 2010, November 2011, and January 2013 for further development of the evidence, which has been accomplished satisfactorily with respect to the issues decided herein, and the Board concludes that it may proceed with a decision on these issues at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A hearing before the undersigned was held in July 2005, via video-conference. A transcript of the hearing is associated with the claims file. The issues of entitlement to service connection for a right knee disorder, to include as secondary to the Veteran's service-connected disabilities, and entitlement to service connection for a right ankle disorder, to include as secondary to the Veteran's service-connected disabilities, 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. A right hip disability is not shown to be related to the Veteran's active duty service, did not manifest in the first post-service year, and is not proximately due to, the result of, or aggravated by a service-connected orthopedic disability. 2. A left hip disability is not shown to be related to the Veteran's active duty service, did not manifest in the first post-service year, and is not proximately due to, the result of, or aggravated by a service-connected orthopedic disability. CONCLUSIONS OF LAW 1. A right hip disability was not incurred in service, was not proximately due to or aggravated by a service-connected disability, and service connection for a right hip disability may not be presumed based on the one year presumption for a chronic disease. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). 2. A left hip disability was not incurred in service, was not proximately due to or aggravated by a service-connected disability, and service connection for a left hip disability may not be presumed based on the one year presumption for a chronic disease. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VCAA and implementing regulations imposes 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), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In an April 2006 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection to include on a secondary basis as well as what information and evidence must be submitted by the Veteran, what evidence VA would obtain, and of what assistance the VA could provide the Veteran in obtaining this evidence. The notice included provisions for disability ratings and for the effective date of the claim. Any defect as to the timing of the VCAA notice was cured because the RO readjudicated the claims on several occasions to include most recently in a March 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). VA examinations were provided in connection with the issues decided herein. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA orthopedic examinations were adequate, to include in the aggregate. The VA nexus opinions provided considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided complete rationales for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the foregoing issues has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, Social Security Administration records, and the Veteran's statements. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the July 2005 Board hearing, the undersigned VLJ identified and explained the issues on appeal thoroughly. As to the duty to suggest the submission of additional evidence, any omission by the VLJ constitutes harmless error, as the issues on appeal have been remanded numerous times for evidentiary development, and the Veteran, therefore, had ample notice of the type of evidence necessary to substantiate the claims as well as sufficient opportunity to submit any additional evidence or seek assistance in obtaining it. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54 . Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that 38 C.F.R. § 3.303(b) applies herein because the disabilities at issue involve arthritis, which is a chronic disease within the meaning of 38 C.F.R. § 3.309(a). See generally, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background The Veteran contends that his right and left hip arthritis is due to his service-connected orthopedic disabilities, which are residuals of a second right toe fracture with plantar callous and tenderness, left knee degenerative joint disease status-post meniscus repair, left ankle degenerative joint disease, lumbosacral strain, residuals of a fracture of the proximal phalanx of the left fifth toe, and residuals of a fracture of the right first toe. Specifically, he maintains that an altered gait caused by these service-connected orthopedic disabilities produced the current right and left hip arthritic disabilities. The service treatment records contain little discussion of the hips. In November 1961, a left hip scar, incurred in high school, was noted. In September 1970, the Veteran received treatment for left leg phlebitis. It is unclear whether the left hip was implicated, but the treatment notes did not mention the left hip specifically. In a March 1973 report of medical history, the Veteran reported that he did not know whether he had lameness; he also reported that he experienced left low back and hip pain previously in service. At that time, no disability of either hip was noted pursuant to objective medical examination. Indeed, a March 1973 medical examination report indicated that all bodily systems were normal. In later years, the service treatment records are silent as to complaints or diagnoses pertaining to the hips. The Board notes that service connection for left lower extremity phlebitis was denied by September 1999 rating decision, and the Veteran's hearing testimony and other communications of record reflect that he is seeking service connection for orthopedic disabilities of the hips. On VA examination in January 1975, the Veteran listed his present complaints, which did not include the hips. The examiner indicated that there was no evidence of an abnormal left leg condition. Private medical records dated in September 1988 reflect that the Veteran developed right knee pain the previous evening that radiated in to his right thigh. Objectively, the examiner saw some mild right thigh swelling. The diagnosis was of, in pertinent part, acute myositis of the right thigh without any evidence of deep venal thrombosis. A December 1998 private medical report indicated that there was pain and swelling with ambulation and standing due to a left leg injury; the physician did not indicate that the hip was implicated. The physician recommended accommodations at work. On VA examination in October 1995, the examiner observed that the Veteran's gait was normal and that his pelvis was level. On April 2000 VA examination of the feet, the Veteran indicated that he had a hard time walking. On examination, the Veteran walked slowly and made grunting sounds as he ambulated. A May 2001 VA progress note indicated that the Veteran had degenerative joint disease of the hips bilaterally, left greater than right. A cane was recommended for gait stability. A July 2001 VA progress note indicated that the Veteran walked with a cane and had a slight limp. At his July 2005 hearing before the undersigned, the Veteran testified that the claimed orthopedic disabilities were secondary to his service-connected orthopedic disabilities because those service-connected disabilities caused an altered gait, which in turn produced the claimed right and left hip disabilities. Upon further questioning, he admitted that he was never told by a physician that an altered gait caused the orthopedic disabilities claimed herein. In September 2008, the Veteran was afforded a VA orthopedic examination. The examiner noted that the Veteran used a cane for walking because he experienced instability and giving way due to the service-connected left knee and left ankle disabilities. The Veteran's gait was described as antalgic, and weight bearing was said to be abnormal. On VA examination in February 2012, the examiner indicated that the Veteran suffered from degenerative joint disease of the hips bilaterally and that the Veteran used a cane regularly due to the service-connected left knee and left ankle disabilities. The examiner opined that there was no nexus between the bilateral hip degenerative joint disease and the service-connected left knee and left ankle disabilities, as there was no evidence to connect the current bilateral hip degenerative joint disease to either the service-connected left knee or left ankle disability. In February 2013, the February 2012 VA examiner indicated that the Veteran's gait was normal when he examined him in the past but that on examination that day, he walked with a pronounced limp on the right side. The examiner opined that the bilateral hip degenerative joint disease was not due to the service-connected left knee, left ankle, low back, left fifth toe, right first toe, or right second toe disabilities. The examiner explained that the service-connected toe disabilities were asymptomatic and thus did not cause any symptomatology that would lead to a hip disability and that there was no relationship between the hips and the other anatomic areas relevant herein. Discussion As stated above, the Veteran appears to be seeking service connection for orthopedic disabilities of the hips. In any event, between September 2001, when the Veteran filed the claim giving rise to the current Board decision, and the present, the only extant disabilities of the hips were orthopedic in nature. Cf McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). No orthopedic disability of the hips was noted in service. Indeed, no injury of either hip was diagnosed, and the Veteran did not report any symptoms of either hip that would suggest the presence of an orthopedic disability to include arthritis. Thus, symptoms of a right and left hip disability were not chronic in service. Hence, service connection for right hip degenerative joint disease and left hip degenerative joint disease is not warranted under the "chronicity" element of 38 C.F.R. § 3.303(b). Next, the Board finds that symptoms of degenerative joint disease of either the right or left hip did not manifest to a degree of 10 percent within one year of separation from service. As apparent from the comprehensive recitation of the evidence above, degenerative joint disease of the hips was not evident until approximately 2001, many years after discharge from active duty and several years after the conclusion of the Veteran's service in the reserves. Thus, service connection for degenerative joint disease of either hip cannot be granted presumptively, as symptoms of degenerative joint disease did not manifest to a degree of 10 percent in the requisite one-year time period. 38 C.F.R. §§ 3.307, 3.309(a). The evidence reflects that there was a gap between service and the onset of degenerative joint disease of the hips. It follows that service connection for degenerative joint disease of the right and left hips cannot be granted based on continuity of symptomatology between service and the present. 38 C.F.R. § 3.303(b). Finally, the Board finds that a review of the evidence in toto reveals that there is no direct nexus between the current degenerative joint disease of the hips and service. Certainly, the Veteran has current disabilities of the hips, and a present disability is a prerequisite for the granting of service connection. Shedden, supra. However, the evidence does not reflect, and the Veteran does not assert, that the degenerative joint disease of the hips was incurred in or aggravated by service. Finally, there is no competent evidence, either lay or medical, of a direct nexus between the current disabilities and service. As such, there is no means by which the Board may grant service connection on a direct basis for the claimed disabilities of the right and left hips. 38 C.F.R. § 3.303; Shedden, supra. The Veteran asserts that the degenerative joint disease of the hips is the result of an altered gait caused by his service-connected skeletal disabilities, namely residuals of a second right toe fracture with plantar callous and tenderness, left knee degenerative joint disease status-post meniscus repair, left ankle degenerative joint disease, lumbosacral strain, residuals of a fracture of the proximal phalanx of the left fifth toe, and residuals of a fracture of the right first toe. Although a lay person is competent to provide an opinion on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 2011), the specific issue in this case, namely the origins of degenerative joint disease, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Veteran's opinion regarding the roots of his bilateral hip disability does not constitute competent evidence upon which the Board may rely. The competent evidence of record is that contained in the VA medical examination reports. That VA examination reports, in the aggregate, provide a comprehensive picture of the Veteran's right and left hip disabilities based on examination, interview of the Veteran, and review of the record. The VA opinions herein reflect that there is no relationship between the Veteran's service-connected orthopedic disabilities and degenerative joint disease of the hips. The Board notes that the February 2013 VA examiner reviewed the record in its entirety and made mention of the Veteran's limp. Nonetheless, he found no relationship between the bilateral hip degenerative joint disease and the service-connected orthopedic disabilities. He provided a rationale for his conclusions. There is no competent and credible evidence to the contrary. As such, there is no means by which to grant service connection for the right and left hip disabilities on a secondary basis to include on the basis of aggravation, and secondary service connection for the degenerative joint disease of the right and left hips is denied. 38 C.F.R. § 3.310; Wallin, supra; Allen, supra. In conclusion, this is not a case where the evidence is in relative equipoise; rather, there is no competent evidence that reflects that the Veteran's currently diagnosed degenerative joint disease of the right hip and degenerative joint disease of the left hip is related to service or to a service-connected disability. In such cases, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany, supra; Gilbert, supra. ORDER Service connection for a right hip disability is denied. Service connection for a left hip disability is denied. REMAND In January 2013, the Board remanded this case for a VA medical examination and opinion regarding the origins of the Veteran's claimed orthopedic disabilities. The examiner was to state, inter alia, whether they were secondary to or aggravated by the service-connected residuals of a second right toe fracture with plantar callous and tenderness, left knee degenerative joint disease status-post meniscus repair, left ankle degenerative joint disease, lumbosacral strain, residuals of a fracture of the proximal phalanx of the left fifth toe, and residuals of a fracture of the right first toe. With respect to the claimed right knee disability, in February 2013, the VA examiner provided negative opinions as to the link between the right knee and the left knee, toes, and back disorders. The examiner did not, however, opine regarding the link, if any, between the claimed right knee disability and the service-connected left ankle disability. With respect to the claimed right ankle disability, in February 2013, the VA examiner provided negative opinions as to the link between the right ankle and the left ankle, toes, and back disorders. The examiner did not, however, opine regarding the link, if any, between the claimed right ankle disability and the service-connected left knee disability. Because the January 2013 remand instructions were not followed, a remand for corrective action is necessary. See Stegall, 11 Vet. App. at 271; D'Aries, 22 Vet. App. 97 (2008) (holding that substantial compliance with the terms of a Board remand is required); see also Barr, 21 Vet. App. at 312 (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Return the claims file to the VA examiner who provided the opinion in 2013, or, if not available, to another examiner. Ask for an addendum opinion addressing whether it is at least as likely as not (50 percent or greater likelihood) that: * the Veteran's right knee disability is proximately due to or aggravated by the service-connected left ankle degenerative joint disease; and * the Veteran's right ankle disability is proximately due to or aggravated by the service-connected left knee degenerative joint disease status-post meniscus repair. The examiner is advised that temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In conjunction with the examination, the examiner must review all pertinent documents in the claims file. The examination report must indicate whether the requested review of the record was accomplished. A complete rationale should be provided for the opinions given. If the requested medical opinions cannot be given, the examiner should state the reason(s) why. 2. Thereafter, the RO should readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 that are remanded by the Board or by the Court 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs