Citation Nr: 1327768 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 04-21 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left hip disability, to include as secondary to a left knee disability. 2. Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for additional disability resulting from VA treatment for peripheral vascular disease of the right leg in April 2006 to include amputation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Montgomery RO. In a May 2003 rating decision the RO declined to reopen a claim of service connection for a skin disorder. In a May 2006 rating decision the RO denied service connection for a left hip disability, to include as secondary to a left knee disability. In a May 2007 rating decision the RO denied entitlement to VA compensation benefits under 38 U.S.C.A. § 1151 for VA treatment of peripheral vascular disease of the right leg. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in December 2009. A transcript of the proceeding is of record. In a July 2010 decision, the Board reopened the Veteran's skin disorder claim and remanded that issue together with his claim of entitlement to service connection for a left hip disability and to VA compensation benefits under 38 U.S.C.A. § 1151 for further development and consideration. In August 2012, the Board granted service connection for a skin disorder, and remanded the remaining issues for further development and consideration. The issue of entitlement to compensation benefits under 38 U.S.C.A. § 1151 for additional disability resulting from VA treatment for peripheral vascular disease of the right leg in April 2006 to include amputation is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the medical evidence is against finding that a left hip disability was present in service or until many years thereafter, nor is any current left hip disability causally or etiologically related to, or aggravated by the service-connected left knee disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in April 2005. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the notification did not advise the appellant of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claims for service connection were denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Smith v. Shinseki, 24 Vet. App. 40, 49 (2010). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs 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. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had evidence or information meeting the criteria for service connection for a left hip disability. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claim. This was not necessary, however, because the Veteran volunteered his treatment history and symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran 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. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. 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). VA has obtained service treatment records (STRs), assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disability, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been associated with the appellant's claims file; and the appellant has not contended otherwise. Additionally, the Board also notes that actions requested in the prior remands have been undertaken. Indeed, treatment records and an additional examination were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. 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). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and arthritis is manifest to a compensable degree within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Further, under this section, the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) held that the provision concerning the continuity of symptoms under § 3.303(b) applies only to the enumerated chronic conditions listed in 38 C.F.R. § 3.309(a). Id. at 1338-39. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Initially, it should be noted that the Board has thoroughly reviewed all the evidence in the Veteran's claims files. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The essential basis of this claim is that the Veteran's left hip disability was caused by instability due to his service-connected left knee disability. The Veteran's STRs are negative for any findings, complaints, or treatment of a left hip disability and the Veteran does not contend otherwise. In May 1985, the Veteran sustained a right tibial plateau fracture. He underwent an open reduction, internal fixation of the fracture in which a bone graft was obtained from his left iliac crest. The RO denied service connection for a right leg disability in May 2007. A decision of the Social Security Administration (SSA) granted the Veteran disability insurance benefits, effective February 2001, due to osteoarthrosis and chronic obstructive pulmonary disease (COPD). A VA opinion was rendered in April 2006. The examiner stated that the bone graft surgery was due to the post-service surgical repair, and that he could find no definitive diagnosis of a left hip condition which could be construed as secondary to the service-connected left knee. A VA joints examination was conducted in August 2010. The examiner opined that the Veteran's left iliac crest bone harvest was the result of surgery for the service-connected left knee disability because it is documented in treatment records. The probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This opinion is inadequate as the iliac bone graft was used to treat a nonservice-connected condition, the right tibia, not the service-connected left knee. Therefore, no probative weight is attached to this opinion. A VA examination was conducted in March 2013, and an addendum was provided in July 2013. Left hip degenerative joint disease was diagnosed. Based on the review of claims file and physical examination, the examiner reported the preponderance of medical evidence does not support aggravation of left hip degenerative joint disease beyond natural progression by the service connected left knee disability, being that the left hip degenerative joint disease by itself is a degenerative process involving bony joint spaces resulting from a complex interplay of multiple factors including, genetics, joint integrity, local inflammation, mechanical forces, and cellular and biochemical processes. For the majority of patients, osteoarthritis is linked to one or more factors, such as aging, occupation, trauma, and repetitive small insults over time. The examiner also noted, in 1985 the Veteran underwent a status post iliac crest bone graft harvest site. This healed with a large with a large broad-based bony spur at the site. His STRs are silent for a left hip condition therefore, status post left iliac crest bone graft harvest site is now resolved as well as the current left hip degenerative joint disease is less likely than not related to service. The examiner concluded that the left hip disability was not caused by service, the service-connected left knee disability, or aggravated by the left knee disability. As indicated above, the Veteran does not claim, nor do the STRs show any complaints, treatment, abnormalities or diagnosis referable to any left hip problems in service. The Board finds the most recent VA medical opinion to be very persuasive, as it was based on a longitudinal review of the entire record, and included a discussion of all relevant facts. The examiner offered a rational and plausible explanation for concluding that the Veteran's left hip disability was not caused by service, or caused or aggravated by his service-connected left knee disability. See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (adoption of an expert medical opinion may satisfy the statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.) The Veteran is competent, as a lay person, to report symptoms of which he has personal knowledge, such as left hip problems. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As a lay person, however, he is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions as such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1) (2012). The specific issue in this case, the relationship between the Veteran's left hip and service-connected left knee disability is a complex medical issue and thus is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As a lay person, he does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of this condition. See Kahana; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when ... a lay person is competent to identify the medical condition" and providing, as an example, that a layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). In the absence of a relative balance of medical evidence or probative lay evidence linking the Veteran's left hip disorder to service or to his service-connected left knee disability, service connection for a left hip disorder is not warranted. As there is no probative evidence showing a left hip disability in service or arthritis within one year of discharge from service, and no persuasive evidence indicating a connection between the Veteran's left hip disability and service or his service-connected left knee disability, the Board finds no basis for a favorable disposition of the Veteran's claim. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for a left hip disability. ORDER Service connection for a left hip disability, to include as secondary to a left knee disability, is denied. REMAND The Veteran asserts entitlement to VA compensation benefits under 38 U.S.C.A. § 1151 because the Houston VA Medical Center "did not do a proper operation on my right leg and there is something inside my leg and it did not correct the problem." He also reports that he was discharged on April 18, 2006, with an infection in his right leg which required that he be readmitted to the Biloxi VA Medical Center for three weeks from April 21, 2006, to May 15, 2006, due to that infection. The record shows the Veteran was admitted to the Houston VA Medical Center on April 6, 2006, because of severe peripheral vascular disease. The operation report shows a right femoral-popliteal-above-the-knee with reversed saphenous vein bypass was performed on April 7, 2006. Doppler signals were strong at the posterior tibial artery, that the Veteran tolerated the procedure well, was extubated, and transferred to the surgical intensive care unit (SICU). He developed fevers and leucocytosis, and soft tissue swelling around the knee and groin incisions. These symptoms resolved with antibiotics and he was afebrile for 48 hours on April 18, 2006. Prior to discharge on April 18, 2006, he was given instructions on his post-operative activities which included a walking regimen, driving, bathing, and lifting. When contacted on April 19, 2006, he stated he felt better but tired. The discharge summary for the period April 21, 2006, to May 15, 2006, at Biloxi shows he was admitted for a non-healing vascular wound. The discharge summary shows he had improved when discharged. The Veteran underwent a second right femoral-popliteal bypass surgery in September 2006. The operation report noted that the Veteran developed signs and symptoms of graft occlusion subsequent to the first bypass in April 2006, and non-invasive studies confirmed that the graft was occluded. The pre-operative diagnosis was failed femoral-popliteal with lifestyle-limiting claudication. The post-operative diagnosis was failed femoral-popliteal with lifestyle-limiting claudication. A February 12, 2007, VA surgery note stated the Veteran had two failed right leg femoral-popliteal surgeries. He was subsequently found to have hypercoagulable state which was treated with Coumadin. The VA surgeon decided that the Veteran could not be offered further surgery to relieve the pain. In December 2007, the Veteran underwent a right above-the-knee amputation. A VA examination was conducted in March 2013, and an addendum was provided in July 2013. Based on the review of claims file the examiner reported, the reason for a femoral popliteal bypass was because a blockage of the artery supplying the leg, and the circulation of blood to the leg was reduced. The operation was to bypass the blocked artery in the leg so that the blood supply would improve. The blocked artery may cause pain in the Veteran's calf when walking, in which case the operation was to allow him to walk further without pain. In most cases, however, surgery to bypass the blockage is recommended when the circulation is so poor that the foot is painful at rest or at night. Ulcers or even black areas of dead skin may also be present when the circulation is very poor. In such cases the operation is essential to prevent the amputation of the leg below or above the knee. Thus, the purpose of the surgery was to alleviate or decrease the need for amputation; however, the failed operations could not have been prevented. The examiner concluded that the ensuing amputation was an unforeseeable risk of surgery. Unfortunately, the Veteran suffered side effects of the surgery, however, according to medical literature, and, after review of the Veteran's records, the examiner concluded that the procedures were what any prudent treating facility would have done. Additionally, the examiner noted that the Veteran was a very heavy smoker which increases the likelihood for decreased circulation in the extremities. Lastly, according to medical literature, either angioplasty (stretching of the narrowed artery with a balloon device) or a femoral popliteal bypass is not successful in about 10% of cases; and even when it is successful, there is a risk that the area in the artery will narrow. The Veteran has a right, as a matter of law, to compliance with the remand orders of the Board. Stegall v. West, 11 Vet. App. 268 (1998). In its latest remand, if the examiner found the amputation was not reasonably foreseeable; the examiner was to opine whether the event was one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided, or was the risk of such event the type of risk that a reasonable health care provider would not have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. However, this question was not answered. Therefore, the claim must again be remanded to resolve this issue. Accordingly, the case is REMANDED for the following action: 1. After physically or electronically associating any pertinent, outstanding records with the claims folder, return the claims files to the March 2013 VA compensation examiner and give her an opportunity to provide an opinion regarding whether a reasonable health care provider would have considered an amputation to be an ordinary risk of the treatment provided, or was the risk of an amputation the type of risk that a reasonable health care provider would not have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. The examiner should also provide an answer regarding whether a reasonable person in similar circumstances would have proceeded with bypass surgery even if informed of the risk of amputation. In arriving at this opinion, the examiner should provide opinions regarding: A) the time frame that that the Veteran's blocked leg artery would require an amputation if the surgery was not performed; B) the level of pain the Veteran had as well as would suffer if he did not undergo the bypass surgeries; C) the impact of the amputation on the functioning of the Veteran's activities of daily living given his right above the knee amputation; and D) please comment on what the average, reasonable person would do, when confronted with the risk of a right above the knee amputation given the Veteran's level of discomfort stemming from his right leg peripheral vascular disease. If, for whatever reason, this examiner is no longer available or able to provide this additional comment (addendum opinion), then obtain this additional comment from someone else equally qualified. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, this requested medical comment can be provided just with review of the claims files. The examiner must provide a complete rationale for all conclusions, which should be set forth in a legible report. 2. Then readjudicate the claim. If the claim continues to be denied, send the Veteran and his representative a supplemental statement of the case and give them time to respond. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs