Citation Nr: 1328046 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 05-02 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for an acquired psychiatric disorder, including depression, mood disorder, dysthymic disorder and anxiety, to include as secondary to a low back disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from December 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, Puerto Rico. With respect to the issue of entitlement to service connection for an acquired psychiatric disorder, the Board finds, for the reasons explained in the remand section below, that this appeal arises from a pending, unadjudicated claim from August 22, 1985. Regarding the claim for service connection for an acquired psychiatric disorder, the Board notes that in addition to the diagnosis of depression, there have been additional diagnoses of anxiety, mood disorder, rule out bipolar disorder, and dysthymic disorder. In Clemons v. Shinseki, 23 Vet. App. 1, 6-7 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. To ensure that the full scope of the psychiatric claim is considered, the Board has recharacterized the issue as a single claim of service connection for an acquired psychiatric disorder, to include depression, anxiety, mood disorder, and dysthymic disorder. The Veteran is not prejudiced by this recharacterization, as it ensures that any mental disorder reasonably encompassed by his original claim will be considered. This matter was previously before the Board in April 2011 and again in September 2012, and the claims were remanded for additional development. It is now returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. In this decision, the Board is deciding the claims of entitlement to service connection for low back and right and left knee disabilities. However, the issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's low back disorder is not related to service or to an incident of service origin. 2. The preponderance of the evidence shows that the Veteran's right knee disorder is not related to service or to an incident of service origin. 3. The preponderance of the evidence shows that the Veteran's left knee is not related to service or to an incident of service origin. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 3. The criteria for entitlement to service connection for a left knee disorder have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). In this case, letters dated in November 2003 and July 2010 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claims for service connection, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. These letters also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. Although the notice letters were issued to the Veteran after the initial adjudication of the claims, the Board finds this error nonprejudicial to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the 2010 letter complied with the requirements of Dingess/Hartman. Thereafter, a Supplemental Statement of the Case (SSOC) readjudicated the claims in January 2013. Thus, any timing error was cured and rendered nonprejudicial. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a Statement of the Case or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records (STRs), service personnel records, VA treatment records and examination reports, and private treatment records. Additionally, the prior August 2012 remand instructions were substantially complied with. Instructions pertinent to the claims being decided included obtaining additional VA treatment records, and obtaining an addendum opinion from the July 2011 VA examiner concerning the claims pertaining to the Veteran's knees and low back. In response, the RO obtained current VA treatment records through January 2013, which have been associated with the Veteran's claims file. The AOJ obtained an addendum opinion in December 2012 concerning the Veteran's right and left knee, and low back claims. Thus, 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)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. As such, the Board finds that VA's duty to notify and assist under VCAA have been met. II. Service Connection Claims The Veteran contends that he is entitled to service connection for a low back disorder, and right and left knee disorders because they are all attributable to his military service. Specifically, the Veteran alleges that he injured his back and knees during a parachute jump. 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). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Caluza elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Arthritis is listed as a chronic condition under 38 C.F.R. § 3.309(a); thus service connection can be established by demonstrating a continuity of symptomatology since service. Also, arthritis also may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, the Veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). 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). 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 United States Court of Appeals for the Federal Circuit (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). 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). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether the weight of the evidence supports the claim, or the weight of the positive evidence in favor of the claim is in relative balance with the weight of the negative evidence against the claim, and the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other issue, that reasonable doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). As an initial matter, the Board notes that the evidence of record establishes that the Veteran currently has diagnoses pertaining to his low back, and right and left knees. Concerning his low back, the Veteran has been diagnosed with lumbar myositis; grade 1/4 spondylolisthesis of L5-S1; and L4-L5 bulging and degenerative disc disease. See December 2003 and July 2011 VA compensation examinations. As for his right and left knees, the Veteran has been diagnosed with bilateral knee joint degenerative disease. See December 2003 and July 2011 VA examinations. Thus, the analysis to follow will center on whether any of these diagnosed disorders are related to the Veteran's military service. The Veteran's STRs clearly show treatment in service for complaints of left knee pain in April 1971, and a diagnosis of a low back strain in November 1972. STRs are negative for any complaints or treatment of a right knee disorder. However, as previously indicated, the Veteran is competent to report that he injured his right knee during a parachute jump in service. Moreover, nothing in the record casts doubt on the Veteran's contentions regarding his allegations of a right knee injury in service. Thus, the Board finds the Veteran is both competent and credible with respect to the right knee allegations and accordingly finds that a right knee injury was incurred during active military service. Post-service VA and private treatment records do not establish that the Veteran's claimed low back, right knee, and left knee disorders are the result of his military service. With respect to his right and left knee disorders, the Veteran was diagnosed with minimal degenerative disease of both knees by a March 2003 VA treating physician. Treatment records dating from August to October 2007 from Dr. J.H. also confirmed the existence of a bilateral knee disorder, but no etiological opinion was provided. Regarding his low back disorder, the Veteran was initially diagnosed with low back pain in June 2003 by a VA physician. A private magnetic resonance imaging (MRI) report from Dr. G.J. of the Veteran's back in December 2004 also shows a history of recurrent back pain. The Veteran was scheduled for a VA compensation examination of the joints in December 2003 to determine the nature and etiology of his diagnosed low back, right knee, and left knee disorders. However, aside from providing the abovementioned diagnoses of the current disorders, the VA examiner did not opine as to the nature and etiology of these diagnosed disorders. Consequently, the Veteran was scheduled for a VA examination in July 2011, as a result of the Board's April 2011 remand directives. Concerning the Veteran's low back, the examiner provided diagnoses of lumbar myositis; grade 1/4 spondylolisthesis of L5-S1; and L4-L5 bulging and degenerative disc disease. The examiner concluded that as to the lumbar myositis, he could not resolve the issue without speculation. As to the remaining lumbar diagnoses, they were not found to be etiologically related to service, to include the in-service parachute injury and treatment for low back strain. The examiner based his decision on the fact that STRs reported a normal spine at the time. With regard to the right and left knee disorders, the diagnosis was bilateral knee joint degenerative disease. The July 2011 VA examiner also concluded that he could not resolve this without speculation. In the August 2012 Board remand, the Board concluded that the July 2011 VA examiner did not provide an explanation for the inability to provide an opinion as to the etiology of all diagnosed low back and bilateral knee disorders; or explain whether the inability was due to the limits of medical knowledge or whether there was additional evidence that would have permitted him to provide the needed opinion. Moreover, the July 2011 VA examiner did not discuss the Veteran's reports, at the examination and elsewhere, that his current back and knee symptoms had begun in service and continued to the present. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). As a result, the Board determined the July 2011 opinions were inadequate and remanded this claim for an addendum opinion. See Jones v. Shinseki, 23 Vet. App. 382 (2010). This requested addendum opinion was submitted in December 2012. At that time, the VA examiner determined that the Veteran's low back, right knee, and left knee disorders, were not at least as likely as not etiologically related to any incidents of the Veteran's service, including an in-service parachute injury and in-service treatments of left knee pain and low back strain. As rationale for this unfavorable opinion, the VA examiner stated that the Veteran reported leg trauma in August 1978 and a back injury in September 1987. Prior to these reported injuries, the examiner stated the Veteran's medical records are silent about the currently diagnosed disorders and without etiological evidence to support the existence of such conditions during the Veteran's military service. In other words, the examiner attributed the current disabilities to documented post-service injuries as opposed to any of the in-service injuries. The Board acknowledges that the Veteran is competent to give evidence about what he has experienced, i.e., in this case, that he has experienced pain and discomfort due to his low back, right knee, and left knee disorders. However, as a lay person without proper medical training and expertise, he is not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of specific disorders to the low back and knees. For example, he is not competent to state that his currently diagnosed lumbar myositis; grade 1/4 spondylolisthesis of L5-S1; L4-L5 bulging and degenerative disc disease; and, bilateral knee joint degenerative disease are the result of his military service because establishing the etiology of these conditions involves a complex medical issue. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Jandreau v. Nicholson, the Federal Circuit stated as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Based on the competent medical opinion provided in the December 2012 addendum, the Board finds that the preponderance of the evidence is against the finding of a medical nexus (i.e., link) between the Veteran's low back, right knee, and left knee disorders and his military service. Moreover, as to the Veteran's degenerative arthritis of both knees, he was initially diagnosed with this disorder in 2003, approximately 41 years after discharge from service. Therefore, service connection on a presumptive basis is not warranted, as there is no competent evidence of manifestations of degenerative arthritis of both knees within a year of the Veteran's discharge from active military service. See 38 C.F.R. §§ 3.307, 3.309. Because the preponderance of the evidence shows that the Veteran's low back , right knee, and left knee disorders manifested many years after service and are not related to or had their onset in service, service connection for low back, right knee, and left knee disorders must be denied. The Board has considered the application of 38 U.S.C.A. § 5107(b), but because the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application in the instant case. ORDER Service connection for a low back disorder is denied. Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. REMAND As a threshold matter, the Board finds that the acquired psychiatric disorder claim has been pending since August 1985, when the Veteran filed a claim for "nervousness which led to drinking." The AOJ did not take any adjudicative action on this claim. In July 2003, the Veteran filed a claim for depression, which was denied by the RO in an April 2004 rating decision. As explained above, when a claimant makes a psychiatric claim, he or she is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1, 6-7 (2009). Therefore, the Board finds that the claims for "nervousness which led to drinking" and "depression" are claims for the same benefit - entitlement to service connection for an acquired psychiatric disorder - and that this claim has been pending since the Veteran filed the initial claim in August 1985. This issue was remanded in August 2012 to obtain a VA compensation examination and opinion as to the origins or etiology of the diagnosed disorders. The Veteran was provided with a VA examination in September 2012. However, for the reasons below, the Board does not find the examination adequate. The evidence of record establishes that the Veteran currently has diagnoses of major depression, substance induced mood disorder and alcohol dependence. See January 2004 and September 2012 VA compensation examinations. VA medical records reveal that the Veteran has also been diagnosed with anxiety, mood disorder, and dysthymic disorder. A September 1973 STR indicates the Veteran was treated for a suicide attempt due to depression. Following separation from service, a statement dated in July 1985 from Dr. T.W. indicates the Veteran was treated for a nervous condition from June 10, 1985, to July 19, 1985. The Veteran has also received treatment from Drs. J.H. and J.A.A., who, in statements dated in October 2007 and a December 2007, respectively, suggested that the Veteran has recurrent depression that is related to his increased back symptoms. Additional post-service VA treatment records show the Veteran has received treatment for psychiatric disorders from March 2003 to January 2013. The Veteran was initially examined in January 2004 in connection with his claim for an acquired psychiatric disorder. The January 2004 VA examiner diagnosed with Veteran with recurrent major depression. However, no etiological opinion was provided by the examiner. In September 2012, the Veteran underwent an additional VA psychiatric examination. The examiner diagnosed substance induced mood disorder and alcohol dependence, in remission. The examiner also stated that alcohol is a potent psychoactive substance and alcohol dependence/ abuse increases risk for depressive disorders and can exacerbate or cause a depressive disorder. The examiner determined that the Veteran's psychiatric disorders are less likely than not incurred in or caused by the Veteran's military service. As rationale, the examiner noted the Veteran's alcohol abuse/ dependence is a non-compensable mental disorder and the Veteran's treatment at VA has been in connection with alcohol-dependence detox or suicidal gestures related to his alcohol abuse/ dependence. The Board notes that a disability resulting from drug or alcohol abuse, since it is willful misconduct, generally cannot be service connected as a matter of law. See 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.303(c)(3) and (d). VA's General Counsel has confirmed that direct service connection for disability that is a result of a claimant's abuse of drugs or alcohol is precluded for purposes of all VA benefits for a claim, as here, filed after October 31, 1990. See VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). The Board finds the September 2012 VA examination and opinion inadequate. Specifically, the VA examiner does not consider the findings of the January 2004 VA examiner, who diagnosed major depression, recurrent, but who did not attribute the diagnosis to poly-substance drug abuse. The entire premise of the 2012 examiner's negative etiology opinion is that the current acquired psychiatric disorder is due to polysubstance abuse which is a bar to VA benefits. However, the January 2004 VA examiner makes no mention of the Veteran's psychiatric disabilities being secondary to polysubstance abuse and the 2012 examiner does not reconcile the previous diagnosis with his diagnosis. Therefore, an additional opinion is required for clarification. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). Finally, VA treatment records from the Bronx Veterans Medical Center, dated from June 10 to July 19, 1985, concerning the Veteran's hospitalization for a nervous condition, dermatitis, and history of withdrawal from seizures, must be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Similarly, the record shows that the Veteran receives ongoing VA treatment for his psychiatric disorders. Currently, records dated through January 2013 are associated with the Veteran's virtual claims folder. Therefore, while the appeal is in remand status his contemporaneous treatment records from any VA facility, as well as from any private healthcare providers, should be obtained and associated with the claims file. Id. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and ask that he provide VA with authorizations to obtain any additional private treatment records related to ongoing treatment for psychiatric disorders that have not yet been associated with the claims file. All actions to obtain the requested records should be documented fully in the claims file. 2. The AOJ should obtain and associate with the record the Veteran's treatment records from June 10 to July 19, 1985, from the Bronx Veterans Medical Center, as well as contemporaneous treatment records VA facilities, dated since January 2013. All actions to obtain the requested records should be documented fully in the claims file. 3. After undertaking the above development to the extent possible, the AOJ should obtain an addendum to the September 2012 VA examination by the same examiner, or other qualified examiner if that examiner is not available, to obtain clarifying opinions as to the relationship, if any, between the Veteran's psychiatric disorders and his military service. The claims file, to include any relevant documents in Virtual VA, should be provided to the examiner in connection with the addendum. If the requested opinion cannot be provided without another examination, the Veteran should be provided with an examination. The examiner should provide answers to the following questions: I. The examiner should identify all currently diagnosed psychiatric disorders. II. As to each diagnosed disorder, is it at least as likely as not (50 percent probability or more) that it is etiologically related to his active military service? III. The examiner should also determine whether the Veteran's polysubstance abuse causes any of the diagnosed psychiatric disorder OR whether the polysubstance abuse is caused by or is a symptom of any of the diagnosed psychiatric disorders. This is a critical distinction in the instant case as disabilities caused by substance abuse are not eligible for entitlement to service connection, but substance abuse that is part of or caused by a service-connected disability is eligible for service connection. If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A complete rationale with citation to relevant evidence found in the claims file must be provided for each opinion offered. 4. The AOJ should thereafter readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). A reasonable period of time should be allowed for response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs