Citation Nr: 1325641 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 09-12 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for bilateral knee disability. 3. Entitlement to a compensable disability evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to August 1978. The Veteran's appeal concerning his knees comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the Veteran's petition to reopen his claim of entitlement to service connection for a bilateral knee disorder. The Veteran's remaining appeals come before the Board from an October 2007 rating decision of the VA RO in Houston, Texas, which reopened the previously denied claim of entitlement to service connection for a lumbar spine disorder, and continued the noncompensable disability rating for the service-connected bilateral hearing loss. In January 2012, the Veteran testified at a Board hearing before the undersigned at the RO in Houston, Texas (Travel Board hearing). A transcript of the hearing has been associated with the claims file. In June 2012, the Board reopened the issues of service connection for bilateral knee disorder and low back disorder and remanded the remaining issues for further development. The claims were most recently remanded again by the Board in April 2013. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision and remand. The Board notes that additional evidence in the form of Workers Compensation records was added to the Veteran's Virtual VA claims file in July 2013, after the issuance of the most recent supplemental statement of the case (SSOC) in May 2013. As explained in the REMAND portion of this decision below, these records are relevant to the back and knee claims, but are in no way relevant or pertinent to Veteran's claim for a higher rating for hearing loss, which is being denied herein. Therefore, a remand for AOJ review of these records is not necessary in conjunction with the Veteran's hearing loss claim. The issues of entitlement to service connection for a lumbar spine disability and a bilateral knee disability 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. The Veteran has Level I hearing loss in the right ear and Level I hearing loss in the left ear. 2. The competent and probative medical evidence of record does not show that the Veteran's service-connected bilateral hearing loss is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). 2. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify Before addressing the merits of the issue on appeal, VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The claimant should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the Federal Circuit held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required. The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id. The notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA, however, may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). Regarding the claim for a higher compensable evaluation for hearing loss, VA provided the Veteran with notice on the Pelegrini II VCAA elements for each of these claims in pre-adjudication letters, issued in December 2006 and May 2007. These letters informed the Veteran to let VA know of any evidence he thought would support his claims of entitlement to a compensable disability rating for bilateral hearing loss, and that it was his responsibility to make sure that VA received all requested records not in the possession of a Federal entity, and told him where to send such evidence. The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO informed the Veteran of the Dingess elements via December 2006 letter. The Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). The Board also finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, VA examination reports, SSA records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant. The Veteran was afforded VA examinations in 2007, 2012, and 2013 regarding his hearing loss. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the examination report set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient. Thus, the Board finds that a further examination is not necessary regarding this issue. Finally, the Veteran was provided an opportunity to set forth his contentions during a January 2012 hearing before the undersigned. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the undersigned fully explained the issue on appeal during the hearing and asked questions designed to indicate evidence that may have been overlooked. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. Significantly, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue of entitlement to an initial compensable disability rating for hearing loss. Increased Rating - Bilateral Hearing Loss The Veteran contends that he is entitled to a higher, compensable evaluation for his bilateral hearing loss disability. His claim for an increased rating was received in November 2006. A January 2007 VA/QTC audiometric evaluation revealed right ear puretone thresholds, in decibels, of 30, 30, 30, 45 and 55 at 500, 1000, 2000, 3000, and 4000 Hertz , respectively, with a puretone threshold four frequency average of 40 decibels. Audiometric evaluation in the left ear revealed puretone thresholds of 30, 30, 35, 50 and 60 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 44 decibels. Speech recognition ability was 100 percent on the right and 100 percent on the left. The Veteran's greatest functional impairment was noted to be asking people to repeat what they have said. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). An August 2011 Disability Consult Examination report noted that that the Veteran had chronic ringing in his ears and that he had difficulty understanding even with his hearing aids. In January 2012, the Veteran testified before the undersigned and stated that he experienced difficulties hearing people and watching TV due to his hearing loss and ringing in his ears. He did report that he was able to understand people with the use of his hearing aids. A July 2012 VA audiometric evaluation revealed right ear puretone thresholds, in decibels, of 15, 15, 20, 45 and 55 at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 34 decibels. Audiometric evaluation in the left ear revealed puretone thresholds of 10, 15, 15, 55 and 50 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 34 decibels. Speech recognition ability was 94 percent on the right and 96 percent on the left. The Veteran's greatest functional impairments were noted as difficulty hearing on the telephone, understanding conversations in background noise, misunderstanding conversations, and asking for repetitions. See Martinak, supra. A March 2013 VA/DBQ audiometric evaluation revealed right ear puretone thresholds, in decibels, of 20, 20, 20, 45 and 60 at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 36 decibels. Audiometric evaluation in the left ear revealed puretone thresholds of 20, 15, 25, 55 and 55 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 37.5 decibels. Speech recognition ability was 94 percent on the right and 98 percent on the left. The Veteran's greatest functional impairments were noted as having difficulties understand conversations and misunderstanding instructions. Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted by a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 ) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience. 38 C.F.R. § 4.86(a) indicates that if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. 38 C.F.R. § 4.86(b) indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. In this case, the Veteran's hearing loss does not meet these criteria and the Veteran's disability cannot be evaluated under the alternative rating scheme. The VA January 2007 audiological examination (QTC) report revealed that the Veteran had a puretone threshold average of 40 decibels in the right ear and 44 decibels in the left ear. He had right ear speech discrimination of 100 percent in both ears. Using Table VI, these findings are equivalent to Level I hearing loss in each ear. Likewise, the VA July 2012 audiological examination report revealed that the Veteran had puretone threshold average of 34 decibels in each ear, and right ear speech discrimination of 94 percent on the right and 96 percent on the left. Using Table VI, these findings are also equivalent to Level I hearing loss in each ear. Lastly, the VA/DBQ March 2013 audiological examination report revealed that the Veteran had puretone threshold average of 36 decibels in the right ear and 37.5 decibels in the left ear, and right ear speech discrimination of 94 percent on the right and 98 percent on the left. Using Table VI, these findings are also equivalent to Level I hearing loss in each ear. Considering Table VII, when there is Level I hearing loss in one ear and Level I hearing loss in the other ear a noncompensable rating is the maximum rating for assignment under the schedular criteria. 38 C.F.R. § 4.87(a), Code 6100. Accordingly, based on the January 2007, July 2012, and March 2013 audiological examination findings outlined above, the Veteran is not entitled to a compensable rating for his bilateral hearing loss disability for any portion of the appeals period. The above determination is based upon consideration of applicable rating provisions. In Martinak, the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012). Id. The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the January 2007 VA audiological examiner addressed the functional effect of the Veteran's hearing loss by noting that the Veteran had to ask people to repeat things said during conversation. The examiner did not comment on the occupational effects as it appears that the Veteran was still employed at the time of the 2007 VA examination. See VA Treatment Records. The July 2012 VA examiner also noted the functional and occupational effects of hearing loss as: difficulty hearing on the telephone, understanding conversations in background noise, misunderstanding conversations, and asking for repetitions. Finally, the March 2013 VA/DBQ examiner noted the functional and occupational effects of hearing loss as: difficulty understanding conversations and misunderstanding instructions. The examiner noted that while this adversely affects his ability to perform physical and sedentary activities of employment, the Veteran "should be able to secure and maintain substantially gainful employment in spite of his hearing loss" with proper amplification and workplace modifications. The Board notes that the Veteran currently wears hearing aids for amplification. A VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination to facilitate determinations regarding extraschedular consideration. Martinak, supra. As demonstrated by the above examination reports, the VA examiners have done so in this case. The Veteran himself has not elaborated on any further functional impairment caused by his bilateral hearing loss not captured by the examinations. Lastly, the Board notes that the Veteran has reported having problems hearing even with the use of his hearing aids. In sum, the criteria for a compensable disability schedular evaluation are not met. In making these schedular determinations, the Board notes that the Veteran's lay assertions of decreased hearing are insufficient to establish entitlement to a higher evaluation for bilateral hearing loss because "disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b) (2012). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's description of the impact that his hearing loss has on his functioning and the effectiveness of his hearing aids is not exceptional or unusual features of his hearing disability. The lay and medical evidence shows that the functional effects caused by the hearing disability do not impact the Veteran in any exceptional or unusual way. Given all of the foregoing, the Board finds that the schedular evaluation in this case is not inadequate. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. Finally, the Board also recognizes that the Court of Appeals for Veterans Claims has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran has not contended that his bilateral hearing loss renders him unemployable and the other evidence of record does not otherwise suggest that this is the case. For these reasons, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. The preponderance of the evidence, however, is against the Veteran's claim and so that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A compensable evaluation for bilateral ear hearing loss is denied. REMAND Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims, and for due process considerations. 38 U.S.C.A. §§ 5103A , 7105; 38 C.F.R. §§ 3.159, 19.26, 19.29. 1. Workman's Compensation Records and related post-service medical records During his July 2012 VA knee examination, the Veteran reported that his knee "locked up" while he was working as a supply clerk at Kelly Air Force base in 1983 (i.e., after service). He further reported that this prompted a 1983 bilateral knee arthroscopy. See July 2012 VA Knee Examination, p. 2. During his July 2012 VA spine examination, the Veteran again stated that his knee gave out on him one time on the job; he reported that he was under workman's compensation for several weeks as a result. The Veteran did not specifically report any work-related back injuries. In the April 2013 remand, the Board directed the RO to obtain the Veteran's workman's compensation award and any underlying medical records. Worker's Compensation records from the Veteran's 1999-2010 employment with the City of San Antonio were obtained and associated with the Veteran's Virtual VA claims file in July 2013. This was subsequent to the most recently issued SSOC in May 2013. These records reflect that the Veteran slipped on water and injured his "rear end and lower back." There are accompanying lumbar spine MRI reports which reflect marked degeneration of the lumbar spine, but no acute findings. Clearly, these worker's compensation records documenting injury to the low back are relevant to the current lumbar spine claim. As they have not been properly reviewed by the AOJ, the claim must be remanded for consideration of such records and issuance of an SSOC. In addition, based on the Veteran's report of injuring his knee at Kelly AFB in 1983, it appears that there may be other outstanding worker's compensation records pertaining to that particular incident. See July 2012 VA spine and knee examinations. Further, although the Veteran reported undergoing bilateral knee arthroscopy in 1983, the record currently contains no VA or private treatment records dated prior to 2000. The Veteran should be afforded an opportunity to identify any private or VA medical providers who may have treated him for knee problems following the 1983 incident. Here, the Board briefly notes that VA treatment records dated in 2002 reference previous knee surgery in 1981 and 1986 at "Methodist," but again, no such treatment records are contained in the claims file. 2. Addendum VA opinion for lumbar spine and knees In the April 2013 and June 2012 remands, the Board also directed the RO to afford the Veteran with an appropriate VA examination for his bilateral knee disorder and low back disabilities. The examiner was directed that for purposes of the examination and opinion to assume that the Veteran's lay statements are competent and credible to describe the circumstances, conditions and hardships of his active military service, since the Veteran is in receipt of the Combat Infantry badge (CIB) and, as such, is a combat Veteran in accordance with 38 U.S.C.A. § 1154(b). At his Board hearing, the Veteran reported falling out of a helicopter during his military service in the Republic of Vietnam, which may have caused his current bilateral knee disorder and low back disorder. The Veteran also described the arduous terrain the Veteran served on during his service in the Central Highlands in Vietnam as well as having to carry gear that weighed between 65 and 85 pounds, and the impact of such service on his back and knees. In July 2012, the Veteran was afforded a VA examination. The examiner opined that neither the bilateral knee disorder nor low back disorder were incurred in or caused by service. However, the opinions were based on the fact that there was no indication of treatment for either disorder documented in the service treatment records. Thus, the examiner did not assume for purposes of the examination that the Veteran's report of in-service injuries to his back and knees was credible as instructed by the Board. Given this deficiency, the opinions were deemed inadequate by the Board; in April 2013, the Board requested an addendum opinion upon remand. The directive to the examiner was as follows: For purposes of this examination/opinion request, the examiner is to assume that the Veteran fell out of a helicopter during his military service in the Republic of Vietnam during which time he sustained injuries to his knees and low back notwithstanding the fact that there is no official record of such injuries in service . Also, the examiner must consider the Veteran's theory that the arduous terrain the Veteran served on during his service in the Central Highlands in Vietnam as well as having to carry gear that weighed between 65 and 85 pounds injured his back and knees. In light of the foregoing, the VA examiner is requested to specifically address the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the currently diagnosed bilateral knee disorder and lumbar spine disorder were incurred during the Veteran's period of service? (In other words, what is the likelihood that the pathology associated with the Veteran's knees and low back is consistent with the type of "fall" injury and "wear and tear" injury the Veteran contends occurred during his combat service.) The addendum opinion was obtained in April 2013. The examiner stated the helicopter incident "never happened because there is no evidence that such a fall occurred...He never had fractures of the spine or knee because there is no evidence that he had the above trauma...[the Veteran's] case file is absent the logical sequence of events that follow such consequential evidence as noted in my experience. His complaints are baseless for his five month in Korea and the subsequent record does not support his contentions." The examiner, however, did not address the Veteran's contentions regarding "wear and tear" related injuries to the back and knees (i.e., arduous terrain in the Central Highlands in Vietnam as well as having to carry gear that weighed between 65 and 85 pounds injured his back and knees). Accordingly, the examination report must be returned to the examiner for compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate action to obtain the Veteran's workman's compensation award related to his knee injury at Kelly Air Force Base in approximately 1983, and any medical records underlying that determination. 2. Contact the Veteran and ask that he provide information regarding any VA treatment received prior to 2000 for knee and/or back disabilities, and private treatment received for his service knees, to specifically include the reported knee arthroscopy procedure at "Methodist" in approximately 1983. After the appropriate release has been signed, the identified records should be obtained and associated with the file. If no records are identified, such should be noted in the record. 3. Thereafter, return the claims file and ask the April 2013 VA examiner who conducted the orthopedic examination of the knees and back to provide an addendum medical opinion (or another suitable examiner if unavailable). The Board understands the examiner's opinion that the Veteran's description of the helicopter incident is absent the logical sequence of events that would follow such an incident. The Board, however, still needs the examiner to address the Veteran's other contention that the arduous terrain the Veteran served on during his service in the Central Highlands in Vietnam as well as having to carry gear that weighed between 65 and 85 pounds injured his back and knees. Accordingly, please address the following: Is it at least as likely as not (a 50 percent probability or greater) that the currently diagnosed bilateral knee disorder and lumbar spine disorder were incurred during the Veteran's period of service as the result of the foregoing described "wear and tear"? (In other words, what is the likelihood that the pathology associated with the Veteran's knees and low back is consistent with the type of "wear and tear" injury the Veteran contends occurred during his combat service.) The term "as likely as not" does not 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 as it is to find against it. Any opinion expressed by the VA examiner must be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. Thereafter, re-adjudicate the Veteran's pending claims in light of any additional evidence added to the record, to specifically include the workers compensation records added to the file in July 2013. If any benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further 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