Citation Nr: 1322502 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 10-09 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased rating for service-connected diabetes mellitus, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for a psychiatric disorder, including as secondary to service-connected disabilities. 3. Entitlement to service connection for a bilateral foot disability, including as secondary to service-connected diabetes mellitus. ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to June 1970. This appeal to the Board of Veterans' Appeals (Board) is from an October 2008 rating decision of the RO in San Juan, the Commonwealth of Puerto Rico, that denied service connection for schizoaffective disorder and a bilateral foot disability (talonavicular coalition, bilateral enthesopathy of the Achilles tendon insertion, foreign body in right foot), and denied an increase in a 10 percent rating for service-connected diabetes mellitus. With respect to the claim for service connection for a psychiatric disorder, the Board notes that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has asserted that he has depression, and the evidence of record reflects a variety of psychiatric diagnoses. The Board has thus broadened this claim and characterized it as listed on the first page of this decision. Historically, the Veteran's claim for service connection for a psychiatric disorder has been previously denied in unappealed rating decisions in April 1973, December 1999, and July 2004. The Veteran's prior claims for service connection for a psychiatric disorder were based on a theory of direct service incurrence, while he now asserts that his current psychiatric disorder was caused or aggravated by his multiple service-connected disabilities. However, a new theory of entitlement to a benefit does not constitute a new claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (Fed. Cir. 2005) (denial of a claim by the Board is a decision as to all potential theories of entitlement, not just those considered and rejected); Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (on direct appeals to the Board, theories of substantive entitlement to benefits such as direct and secondary service connection are not independent for res judicata purposes, and can be lost forever if not addressed). Because the claim for service connection for a psychiatric disorder has been previously considered, denied, and not timely appealed, there has to be new and material evidence to reopen this claim and warrant further consideration of it on its underlying merits. 38 U.S.C.A. § 5108(West 2002); 38 C.F.R. § 3.156 (2012). Indeed, regardless of what the RO determined in this regard, so, too, must the Board make this threshold preliminary determination, before proceeding further, because it in turn affects the Board's jurisdiction to consider this claim on its underlying merits, i.e., on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); and Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). See also McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims); Butler v. Brown, 9 Vet. App. 167, 171 (1996), and VAOPGCPREC 05-92 (March 4, 1992). In a September 2012 decision, the Board allowed the Veteran's claim for a psychiatric disorder to be reopened and, thus, the current issue for service connection is properly the Board. The Veteran's claim was previously before the Board in September 2012. At that time, the claim was remanded for further development. That development having been completed, this case is once again before the Board. There are other issues that are not currently before the Board. In a March 2009 rating decision, the RO adjudicated several other claims, including granting service connection for peripheral neuropathy of both upper extremities, granting increased ratings for peripheral neuropathy of both lower extremities, and granting a total disability compensation rating based on individual unemployability (TDIU rating). As the Veteran has not appealed any of the issues adjudicated in this rating decision, the issues are not in appellate status and will not be addressed by the Board. 38 U.S.C.A. § 7105; see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he must separately appeal for a higher rating and earlier effective date since these are "downstream" issues from his initial claim for service connection). A review of the Virtual VA paperless claims processing system revealed VA outpatient treatment records dated May 2011 to November 2012. Finally, the Board notes that the Veteran was previously represented by Puerto Rico Public Advocate for Veterans Affairs, but by a statement signed and dated in January 2011, he explicitly revoked his appointment of this organization as his representative, and has not appointed another representative. Hence, he is unrepresented in this appeal. The issues of entitlement to service connection for a psychiatric disorder, including as secondary to service-connected disabilities and entitlement to service connection for a bilateral foot disability, including as secondary to 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. FINDING OF FACT The medical evidence of record shows that the Veteran's diabetes mellitus type II is controlled by diet alone. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for diabetes mellitus type II are not met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 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. (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). By letters dated in March 2008, April 2009, and October 2012, the RO advised the Veteran of the evidence needed for claim substantiation and explained what evidence VA would obtain or assist in obtaining and what information or evidence the claimant was responsible for providing. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The letters apprised the Veteran of the downstream disability rating and effective date elements for claims, as required under Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim was readjudicated in a February 2010 SOC and March 2010 and February 2013 supplemental statements of the case (SSOC). The Board finds that VA's duty to notify has been met. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records, private treatment records, and VA outpatient treatment records have been obtained and associated with the claims file. The duty to assist also includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and relevant Social Security Administration (SSA) records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). VA provided the Veteran with adequate medical examinations in April 2008, March 2010, and November 2012. The examinations were adequate because they contained a history obtained from the Veteran and thorough examinations relevant to the applicable rating criteria. They also addressed the functional effects caused by the Veteran's disability, to include the effects on his occupation. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. The Board finds that the duty to assist has been met. Also, the Board finds that there has been substantial compliance with the directives of the September 2012 Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1(2012). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41(2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran's diabetes mellitus type II is rated as 10 percent disabling under the diagnostic code for diabetes mellitus in accordance with the General Rating Formula for the Endocrine system. 38 C.F.R. § 4.119, Diagnostic Code 7913. A 20 percent evaluation is warranted for requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. Id. A 40 percent evaluation is warranted for requiring insulin, restricted diet, and regulation of activities. Id. A 60 percent evaluation is warranted for requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. Id. A 100 percent evaluation is warranted for requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Id. Analysis The Veteran has alleged that his service-connected diabetes mellitus type II has worsened since his last evaluation. A review of the Veteran's private treatment records show that he was being treated for diabetes and presented symptoms of elevated blood sugar levels, fatty liver, numbness, burning and pain sensation in arms and legs, vision problems, and erectile dysfunction. No indication was given that the Veteran was being administered insulin, hypoglycemic agents, or requiring a restriction of activities or diet. A review of the Veteran's VA outpatient treatment records also shows that he was receiving treatment for his diabetes. Treatment records indicate that the Veteran's diabetes was treated only with restricted diet. No indication was given that the Veteran was being administered insulin, hypoglycemic agents, or requiring a restriction of activities. The Veteran was administered a VA examination in April 2008. At that examination, the examiner reviewed the Veteran's claims file and took the Veteran's subjective history of his diabetes. It was noted that that Veteran had previously fallen and been diagnosed with a hypoglycemic episode. Since that time, the Veteran's diabetes has been stable and he has just been treated with diet. No significant effects were noted with occupation or activities of daily living. The Veteran was administered an additional VA examination in March 2010. At that examination, the examiner reviewed the Veteran's claims file and took the Veteran's subjective history of his diabetes. It was noted that the Veteran had been diagnosed with diabetes approximately five years prior. The examiner found that the Veteran's diabetes has been stable and he has just been treated with diet. No effects on occupation or activities of daily living were noted. The Veteran was administered an additional VA examination in November 2012. At that examination, the examiner reviewed the Veteran's claims file and took the Veteran's subjective history of his diabetes. The examiner found that the Veteran's diabetes has been stable and he has just been treated with diet. No effects on occupation or activities of daily living were noted. Based on the above, the Board finds that the Veteran's diabetes mellitus type II only meets the criteria for a 10 percent evaluation throughout the entire appeal period. In order to warrant the next higher evaluation, the evidence must show that he requires insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. Although the Veteran's VA outpatient treatment records and 2008, 2010, 2012 VA examinations show that the Veteran has the requirement of a restricted diet, there is no indication that the Veteran is additionally taking insulin or hypoglycemic agents. In fact, his condition has been consistently reported as stable. Because the medical evidence of record has not at any time during the pertinent appeals period shown the requirement for insulin or hypoglycemic agents, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent for his condition. Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of 'an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In this regard, the schedular evaluations in this case are not inadequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected diabetes mellitus type II, but the evidence reflects that those manifestations, namely the requirement of taking insulin or hypoglycemic agents, are not present. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's diabetes mellitus type II. Therefore, the Veteran's current rating appropriately contemplates the scope of his complaints. Accordingly, referral is not required. The evidence of record does not warrant ratings in excess of those assigned for the Veteran's diabetes mellitus type II at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012). ORDER Entitlement to an increased rating for service-connected diabetes mellitus, currently evaluated as 10 percent disabling, 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. Specifically, a remand is required to provide the Veteran with new VA examinations. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311(2007). An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. at 124. In the absence of a sufficiently supported medical opinion, VA fails to meet its duty to assist obligations and a remand is necessary to cure this defect. See 38 C.F.R. § 3.159(c)(4) (2012). Service connection is permissible on a direct basis for disability that was incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also is permissible on an alternative secondary basis if it is shown the claimed condition is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When determining service connection, all theories of entitlement - direct, presumptive and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Thus, despite the Veteran's current theories of secondary service connection for his claimed psychiatric disability and bilateral foot disability, the Board must consider all theories of service connection. Psychiatric Disability The Veteran currently contends that his current psychiatric disorder was caused by his service-connected disabilities. In prior claims, the Veteran had contended that his psychiatric disorder was related to military service. A review of the Veteran's service treatment records (STRs) shows that in June 1970 he reported a history of depression or excessive worry; the reviewing examiner noted that the Veteran worried about minor events, which was judged not significant. A psychiatric disorder was not diagnosed on separation examination in June 1970. A review of the Veteran's private treatment records shows records from Bayamon Regional Hospital dated in February 2004 reflecting that he reported that he had anxiety disorder for 35 years. He was diagnosed with anxiety disorder. Additional evidence of record includes an undated letter from a private physician, Dr. O. that was submitted to VA by the Veteran in November 2008. Dr. O. diagnosed schizoaffective disorder, among several other conditions, and opined that it was more probable than not that his conditions are all service-connected. A review of the Veteran's VA outpatient treatment records shows a January 1973 VA psychiatric examination which diagnosed chronic anxiety neurosis. At this examination, the Veteran reported that he was receiving private psychiatric treatment. VA medical records dated from 2004 to June 2004 reflect psychiatric treatment; in February 2004 he was diagnosed with anxiety state and major depressive disorder with mood congruent psychotic features by history, while in June 2004 he was diagnosed with major depressive disorder, with psychotic features, and rule out schizoaffective disorder, depressed. A report of a June 2004 VA psychiatric compensation examination reflects that the examiner diagnosed schizoaffective disorder, depressive type, with no other current mental disorder. Treatment notes dated since 2011 have continued to carry the diagnosis of schizoaffective disorder as well as noting a partner relational problem. In an October 2012 treatment note, it was indicated that depression and anxiety were no longer significant problems for the Veteran and that he was coping with physical pain and a divorce. The Veteran was diagnosed only with an adjustment disorder (related to medical difficulties and divorce). A VA psychiatric compensation examination was conducted in April 2008, the Veteran reported that he had been receiving treatment for a psychiatric disorder for the past three years. The examiner noted that the claims file had been reviewed, and diagnosed schizoaffective disorder. The examiner opined that his neuropsychiatric condition was not related to his presently service-connected conditions (diabetes mellitus, peripheral neuropathy of the lower extremities, and erectile dysfunction), and was not caused or aggravated by his service-connected conditions. The Veteran was provided with an additional VA psychiatric compensation examination in November 2012. At this examination, the examiner reviewed the Veteran's claims file and took a subjective history. The Veteran was diagnosed with bipolar disorder type I. The global assessment of functioning (GAF) score was 66. The Veteran's symptoms were indicative of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner found evidence of symptoms of depressed mood, anxiety, and memory loss. The examiner opined that the Veteran's psychiatric condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support, the examiner provided that the Veteran had a single acute incident in military service in 1970 and there is no indication that it resulted in any residual disability. The examiner also provided that the Veteran's psychiatric condition has not deviated from its natural progression, as evidenced by a lack of hospitalizations, and is not aggravated by any service-connected conditions. However, the examiner did not opine regarding whether any of the Veteran's service-connected conditions have caused his psychiatric disability. The Board finds that the 2012 VA examination is inadequate, as it does not fully address the issue of secondary service connection. In particular, the examiner omitted a discussion of whether any of the Veteran's service-connected disabilities caused his psychiatric disability. This is particularly important in light of the VA outpatient treatment note dated October 2012 that related the Veteran's psychiatric disability as partially caused by "medical difficulties." Accordingly, the examination report must be returned to the 2012 examiner for an addendum that addresses the foregoing. Foot Disability The Veteran has claimed that he has a foot condition distinguishable from his service-connected bilateral lower extremity peripheral neuropathy that is also related to his diabetes mellitus. The Veteran was originally provided with a VA examination in April 2008. Although the April 2008 VA examiner provided an opinion regarding whether the current foot conditions were caused by diabetes mellitus or peripheral neuropathy, he did not opine as to whether they were aggravated by a service-connected disability. Moreover, the medical opinion in this report was somewhat contradictory, in that the examiner stated both that there was no current foot or ankle condition, but then identified current foot and ankle conditions (talonavicular coalition, bilateral enthesopathy of the Achilles tendon insertion, and foreign body in the right foot). The Veteran was provided with an additional VA examination in October 2012. The examiner reviewed the claims file and noted the Veteran's subjective complaints of bilateral foot pain. The examiner was asked, per the instructions of the September 2012 Remand, to identify any foot conditions other than the peripheral neuropathy. The examiner identified a right dorsal foot fragment wound. The examiner was also asked to provide an opinion as to whether this condition was caused or aggravated by a service-connected disability. The examiner provided that the right dorsal foot fragment wound was not related to the Veteran's peripheral neuropathy because the wound does not affect the complications of diabetes mellitus that results in peripheral neuropathy. The examiner was also asked to opine whether the right dorsal foot fragment wound was incurred in or aggravated by military service, but the examiner did not provide a response. Although the 2012 examiner was able to identify an independent foot condition and offer an opinion regarding the relationship to the Veteran's service-connected conditions, the Board finds that such opinion was inadequate as the examiner did not discuss the theory of direct service connection. The examiner was specifically asked to provide an opinion regarding the relationship of the Veteran's foot condition to military service and did not do so. Further, the opinion provided discussed the potential effect, or lack thereof, from the Veteran's foot condition on the complications of diabetes rather than discussing the effect of the Veteran's diabetes or complications on the foot condition, whether causing or aggravating. Accordingly, the examination report must be returned to the 2012 examiner for an addendum that addresses the foregoing. Accordingly, the case is REMANDED for the following action: 1. Return the examination report and claims file to the examiner who conducted the November 2012 VA mental disorders examination (or another appropriate examiner if unavailable) for an addendum opinion in regard to the Veteran's claimed psychiatric disability. While the examiner found that "[t]here [was] no crisis or hospitalization related to bipolar disorder, therefore an aggravation from an existing service connected condition was not found," the Board must also know the following: Whether it is at least as likely as not that the Veteran's psychiatric disorder was caused by a service connected disability (peripheral neuropathy of the upper and lower extremities, diabetes mellitus type II, and erectile dysfunction). The examiner's consideration should include a VA outpatient treatment note dated in October 2012 that noted that the Veteran's psychiatric disability was partially caused by "medical difficulties." *The term "at least as likely as not" means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, 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 or the conclusion as it is to find against it. The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable. 2. Return the examination report and claims file to the examiner who conducted the October 2012 VA foot examination (or another appropriate examiner if unavailable) for an addendum opinion in regard to the Veteran's claimed bilateral foot disability. While the examiner found that the Veteran's current condition of right dorsal foot fragment was not related to his service connected peripheral neuropathy, the rationale provided was how the nonservice connected disability affected the service connected disability ("the fragment wound does not affect the progression of complications of diabetes mellitus that results in peripheral neuropathy"). The Board needs to know the reverse-whether the service connected disabilities affect the nonservice connected disability. Also, the examiner must address the direct service connection theory of entitlement. Accordingly, please provide an opinion on the following: (a) Whether it is at least as likely as not that the Veteran's bilateral foot disability (talonavicular coalition, bilateral enthesopathy of the Achilles tendon insertion, and right dorsal foot fragment) was (i) caused or (ii) aggravated by his service-connected peripheral neuropathy of the lower extremities and diabetes mellitus type II. If such aggravation is found, the examiner should determine: (1) the baseline manifestations of the Veteran's bilateral foot disability absent the effect of aggravation; and (2) the increased manifestations that are proximately due to the service-connected peripheral neuropathy of the lower extremities and diabetes mellitus type II. (b) Whether it is at least as likely as not that the Veteran's bilateral foot disability (talonavicular coalition, bilateral enthesopathy of the Achilles tendon insertion, and right dorsal foot fragment) is etiologically related to an incident of the Veteran's military service. *The term "at least as likely as not" means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, 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 or the conclusion as it is to find against it. *Aggravation is defined for legal purposes as a chronic or permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran now has, above and beyond that he had prior to the aggravation. So, if possible, there needs to be some comparison with his baseline of disability versus the disability he now has as a result of the aggravation, again, assuming first it is determined there has been aggravation. The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs