Citation Nr: 1328758 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-23 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151, for an additional left leg neurological disability as a result of VA treatment. 3. Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151, for an additional genitourinary disability as a result of VA treatment. 4. Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151, for an additional heart disability as a result of VA treatment. REPRESENTATION Veteran represented by: Arkansas Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and R.L. ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to May 1976. These matters come before the Board of Veterans' Appeals (Board) from rating decisions rendered in November 2005 and January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. These matters were previously before the Board in March 2012, when the Board remanded the case for additional development. The Board finds that there has been substantial compliance with the remand instructions with respect to the claim for service connection for a lumbar spine disability. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). In addition to the issues listed above, in March 2012, the Board also remanded the issue of service connection for a psychiatric disability. A March 2013 rating decision granted service connection for a psychiatric disability and that claim is no longer on appeal before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issues of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151, for an additional neurological, genitourinary, and heart disabilities as a result of VA treatment are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT The competent evidence of record does not support a finding that a relationship exists between the Veteran's currently-diagnosed lumbar spine disability and his service. CONCLUSION OF LAW The Veteran's lumbar spine disability was not incurred or aggravated by the Veteran's active duty service, and arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.012, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (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 should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed . Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duty to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Correspondence dated in July 2005 notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The Veteran was later provided with notice regarding the degree of disability and effective date pursuant , and the Veteran has been provided with several readjudications of his claim since that notification. The Board finds that there has been no prejudice to the Veteran requiring additional notice. The Board finds that the duty to notify has been satisfied, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran's service medical records, VA medical treatment records, private treatment records, and records from the Social Security Administration (SSA) have been obtained, to the extent available. An April 2013 Formal Finding of Unavailability of the Veteran's service medical records was made. However, the Board observes that the unavailable service medical records concerned the Veteran's purported in-service hospitalization for a psychiatric disability. The Veteran has since been granted service connection for a psychiatric disability. The absence of those records is thus not prejudicial to the Veteran in this case. Furthermore, there is no indication that there is any additional relevant evidence that is available and not part of the claims file. The Veteran has been provided with several VA examinations. The Veteran underwent an additional examination of his lumbar spine in February 2013. In the February 2013 examination report, the VA examiner reviewed the Veteran's claim file, past medical history, recorded the Veteran's current complaints and history, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. That opinion is therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran presented testimony before the undersigned in a May 2011 videoconference hearing, and a transcript of this hearing is of record. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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." For certain chronic diseases, set forth in 38 C.F.R. § 3.309(a), a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012). A continuity of symptomatology as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is among the listed chronic diseases and it may be established based on a continuity of symptomatology. 38 C.F.R. § 3.309 (2012). With regard evidence of a current disability, the February 2013 VA examination, among other medical evidence, shows that the Veteran has degenerative disc disease of the lumbar spine. Therefore, a current disability is shown. With respect to a finding of an in-service event, disease, or injury, a February 1974 service treatment record shows complaints of low back pain caused by trauma. The Veteran was placed on physical profile for a low back contusion and received physical therapy. A February 1974 x-ray report shows that the Veteran slipped on a wet floor and his back hit a trash can. The x-ray revealed findings of spina bifida occulta at S1 and no evidence of acute injury. May 1974, February 1975, March 1975, and July 1975 health records showed continued complaints of low back pain. A February 1975 x-ray showed that the Veteran's spine was within normal limits while a July 1975 X-ray showed right scoliosis to the side, but otherwise no abnormality. The Veteran's April 1976 service separation examination report did not show any complaints, findings, or diagnosis of any lumbar spine disorder. The Veteran complained of recurrent back pain in an April 1976 Report of Medical History. The examiner noted that the Veteran had suffered muscle spasms and pain in the lumbar area. The Board finds that an in-service injury is shown. Regarding medical evidence of nexus or determination of the relationship, if any, between the Veteran's current disability and service, the Board finds that is essentially medical in nature. An October 1988 x-ray report was negative for fracture but was consistent with mild degenerative disc disease at L4-5 and mild levoscoliosis. A December 1998 x-ray report showed a normal lumbosacral spine. A January 1999 MRI report showed a small central L4-5 disc herniation and dessication of the L2-3 disc. In January 1999, the Veteran complained of chronic low back pain. In the Veteran's March 1999 Social Security Disability Supplemental Interview Outline, the Veteran stated that his shoulder dislocation led him to develop a slipped disc in his low back. In a March 1999 Intake Assessment for the Western Arkansas Counseling and Guidance Center, the Veteran stated that he had a herniated disc in his back that he thought was related to a recent physical altercation. In March 2002, the Veteran indicated that he had experienced approximately three to four years of low back pain, which started acutely secondary to trauma. In June 2002, Dr. R.C.T. indicated that the Veteran had suffered from a large herniated disc since at least June 1999. In a July 2002 compensation claim, the Veteran asserted that he had suffered from a severe back condition since 1998. In September 2002, however, the Veteran reported that he had experienced problems with his back since an in-service fall in 1974. In February 2003, a VA examiner found that the in-service finding of spina bifida occulta would not have caused the Veteran's pain and neurological symptoms. The examiner found it unlikely that the Veteran's current condition stemmed from the claimed in-service event because there was no evidence of any neurologic findings, x-rays were negative, and no other invasive studies were performed at that time. The examiner concluded that there was no evidence to support a finding that the Veteran's current low back condition was connected to the in-service fall in 1974. Instead, the examiner opined that there was the possibility that the degenerative changes at L4-L5 were a result of repetitive trauma over many years to the low back. In April 2003, a private chiropractor submitted a statement that the Veteran had not received treatment at that office for more than 10 years, and the Veteran's medical treatment records had been destroyed. In a June 2003 VA examination report, the Veteran indicated that his back problems began five years before when he fell on a coffee can, which then hit him in the lumbar spine region. After that incident, the Veteran complained of intermittent pain in his back. In December 2004, Dr. A.S. noted that the Veteran had a long history of low back pain dating back "at least to 1999." In March 2006, the Veteran's former spouse indicated that he was often "down" from his in-service back injury following their marriage in 1975. The Veteran's former spouse observed the Veteran's problems with his back "going out" until the end of their marriage in 1985. In March 2006, a friend of the Veteran's stated that the Veteran had severe back problems from 1991 to 1996. During that time, the Veteran occasionally could not stand up. The Veteran visited a chiropractor for treatment of that condition. In March 2006, the Veteran's father stated that the Veteran hurt his back in basic training, and that he then worked with his son doing tiling and carpentry jobs. The Veteran's father indicated that the Veteran was "down with his back that he hurt in service." In a 2006 statement, the Veteran's friend stated that the Veteran's back went out in 1997. The friend stated that the Veteran had previously visited a chiropractor, but that chiropractor had gone out of business. The Veteran had stated to the friend that he injured his back during active duty service. In September 2006, the Veteran's niece stated that the Veteran would "come home from work and was always in pain with his back." At a May 2006 VA examination, the Veteran indicated that he had suffered from pain associated with a herniated nucleus pulposus since 1974. The Veteran indicated that he worked in machine shop maintenance for two years, with the pain continuing intermittently. The Veteran indicated that he worked in carpentry after service for six months, and he stated that he injured his back during that time. The examiner acknowledged in-service and post service back treatment and diagnosed low back arthralgia, but the examiner did not provide a medical opinion regarding etiology. In a May 2007 hearing before RO personnel, the Veteran stated that he received chiropractic care for his back from 1977 to 1978. The Veteran further stated that he had received chiropractic care in the 1980s and the 1990s. In September 2008, Dr. A.S., a Board-certified neurosurgeon, indicated that he had reviewed the Veteran's service medical records. Dr. A.S. noted that the Veteran fell and bruised his back in January 1974, and he subsequently developed low back pain. The Veteran stated to Dr. A.S. that x-rays showed "trouble" at L4-L5, although the medical records did not give an exact localization. Dr. A.S. noted that the Veteran was treated conservatively. Dr. A.S. noted the Veteran's contentions that during the succeeding years, the Veteran continued to have episodes during which his back "would go out" and he had severe back pain. During those times, the Veteran "went to bed" and could not work. Dr. A.S. noted that in 1998, the Veteran's symptoms got worse, although the symptoms were always of the same type and in the same place. Dr. A.S. noted that the Veteran's recounted history, along with statements from family and friends, supported the Veteran's contentions that he suffered low back pain in 1974 following an in-service fall. Dr. A.S. opined to a reasonable degree of medical certainty that the fall in 1974 caused the Veteran's back problems, which worsened with time and eventually required surgery. In November 2008, a VA examiner noted the Veteran's contention that he first experienced lumbar spine pain following a 1974 in-service fall. The Veteran contended that his pain had been progressively worse since the time of that incident. The examiner opined that that it was at least as likely as not that the Veteran's chronic back pain and osteoarthritis were connected to his in-service back injury. The examiner also noted the possibility, however, that the Veteran's chronic pain was from recurrent trauma. In January 2009, the Veteran stated during a cardiology consultation that he injured his back in the early 1990s. The Veteran stated that his back pain originated following a 1974 in-service injury. At a February 2013 VA examination, the examiner opined that the Veteran's lumbar spine disability was less likely than not incurred in or caused by the Veteran's active duty service. As a rationale for that opinion, the examiner indicated that the Veteran's degenerative disc disease and osteoarthritic changes were due to multiple factors, including an extensive smoking history of two packs per day for 30 years, age, normal wear and tear on the discs, an occupational history of physically demanding work as a machinist for many years, a history of morbid obesity, poor core strength, and a sedentary lifestyle. Upon review of the evidence, the Board observes two opinions that support a finding that the Veteran's lumbar spine disability is related to active duty service: the September 2008 opinion of Dr. A.S., and the VA examiner's November 2008 opinion. The Board, however, assigns each of those opinions relatively little probative weight. The November 2008 opinion was not supported by a rationale explaining the conclusion. Additionally, the opinion stated that it was also possible that the Veteran's chronic back pain was the result of recurrent trauma. Without a rationale and with an acknowledgement of the possibility that the Veteran's back pain was unrelated to service, the Board affords the November 2008 opinion with little probative weight because it is contradictory and not explained by rationale. With respect to the September 2008 opinion of Dr. A.S., the Board observes that though Dr. A.S. stated that he reviewed the Veteran's records, Dr. A.S. offered an opinion that was based largely on lay descriptions of the Veteran's condition that were not otherwise supported by the medical evidence of record. For example, Dr. A.S.'s opinion suggests that the Veteran's x-rays showed "trouble" at L4-L5 following his January 1974 in-service injury. Not only is this statement unsupported by the medical evidence, but Dr. A.S. did not discuss the significance of the normal findings regarding the Veteran's lumbar spine at service separation. Furthermore, Dr. A.S. did not discuss or weigh the importance of any other factors that might have contributed to the Veteran's lumbar spine disability, including such factors as the Veteran's smoking history, age, and morbid obesity, that were discussed by another examiner. The reliance of Dr. A.S. on lay evidence of record and the failure of the opinion to consider the possibility of other etiologies detracts from the probative value of that opinion. The Board places relatively greater probative weight on the opinion of the February 2013 examiner, who found that there was not a likely connection between the Veteran's low back disorder and his military service. The examiner physically examined the Veteran, reviewed the Veteran's claims file, and considered the Veteran's own contentions before arriving at the conclusion that the Veteran's low back disorder was less likely than not related to service. The examiner explained the opinion and suggested more likely etiologies for the disability. The Board affords the February 2013 examiner's opinion with great probative weight. To the extent that the Veteran believes that his lumbar spine disability is related to his service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with an examination based on the competency of those observations. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a lumbar spine disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's lumbar spine disability is related to his military service, the Board ultimately affords the objective medical evidence of record, which fails to find a connection between the Veteran's conditions and his military service, greater probative weight than the lay opinions. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his lumbar spine disability, and it finds that he has not done so. There is no competent medical evidence suggesting that the Veteran was treated after service for a lumbar spine disability until 1988, or approximately 12 years after separation from service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Furthermore, from March 2002 to July 2002, the Veteran stated that he had experienced back pain since approximately 1998. In March 1999, the Veteran attributed his recent back pain to a recent physical altercation. Only in September 2002 did the Veteran begin to contend that he had experienced continuous back pain since the time of his 1974 in-service accident. Thus, while the Board has considered the lay contentions that the Veteran experienced back problems after military service, the Board finds that the weight of the evidence, including the Veteran's own contentions to VA care providers, does not support a finding of continuous symptoms since active duty. The Board finds that Veteran's more recent assertions relating the back disability to service to be less credible because of his contradictory prior statements of record. Therefore, the medical nexus element cannot be met via continuity of symptomatology with regard to the Veteran's claimed low back disorder. The Board finds that the Veteran's allegations of continuity of symptomatology are not credible. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the preponderance of the evidence is against the claim. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a lumbar spine disability is denied. REMAND Unfortunately, an additional remand of the Veteran's claim for compensation benefits pursuant to 38 U.S.C.A. § 1151, for an additional neurological, genitourinary, and heart disabilities as a result of VA treatment is warranted. Although the Board regrets the additional delay associated with this remand, further development of the record is required before the Board may render a decision. When the Board's remand requests are not satisfied, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board's March 2012 Remand instructed the AMC to schedule the Veteran for a medical examination. With respect to each of the Veteran's claimed additional disabilities, the Board's Remand requested the following opinion: After a full review of the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has any additional . . . disability . . . due to VA treatment, to include VA treatment notes dated in 1998, a January 2002 discogram, and August 2002 surgical procedure. The Veteran received examinations addressing his claimed disabilities in February 2013. With regard to each of the requested opinions, the examiner opined that the claimed condition was less likely than not incurred in or caused by the Veteran's active duty service. However, the Board requested an opinion as to whether the Veteran incurred additional disability as a result of VA treatment. Accordingly, additional opinions should be solicited addressing whether the Veteran suffered additional disability as a result of VA treatment. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and provide him with the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on the Veteran's response, attempt to procure copies of all records that have not been previously obtained from any identified treatment sources. Ensure that all records of which the RO has notice, including all pertinent VA treatment records, have been obtained and associated with the claims file. 2. Then, forward the Veteran's claims file to a neurologist of sufficient expertise. The neurologist must review the claims file and must note that review in the report. The neurologist should acknowledge and discuss the findings in the VA treatment records; VA examination and opinion reports dated in January 2002, July 2002, February 2003, July 2003, May 2006, August 2006, December 2006, March 2007, and November 2008; the statements from the Veteran's private treatment providers dated in January 2002, March 2002, June 2002, December 2004 and May 2006; and the lay statements from the Veteran asserting the occurrence of an additional neurological disability caused by VA treatment and proximately due to VA negligence. The neurologist should provide the following opinions: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran has any additional neurological disability (to include left lower extremity neurological impairment) due to VA treatment, to include VA treatment dated in 1998, a January 2002 discogram, and an August 2002 surgical procedure. (b) If any additional disability is diagnosed, the neurologist should offer an opinion as to whether it at least as likely as not (50 percent probability or greater) that the proximate cause of any identified additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment from 1998 to the present. The neurologist should also discuss whether any failure on part of VA to timely diagnose and properly treat the lumbar spine disability caused or contributed to the Veteran's development of any additional disability (including left lower extremity neurological impairment) and whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished the hospital care, medical or surgical treatment, or examination without informed consent. (c) If any additional disability is diagnosed, the neurologist should offer an opinion as to whether it at least as likely as not (50 percent probability or greater) that the proximate cause of any identified additional disability is event which was not reasonably foreseeable, based on what a reasonable health care provider would have foreseen. 3. Then, forward the Veteran's claims file to a urologist . The urologist must review the claims file and must note that review in the report. The urologist should acknowledge and discuss the findings in the service and early post-service VA treatment records; VA examination and opinion reports dated in July 2002, May 2006, September 2006, November 2006, February 2007, May 2007, November 2008, and February 2009; the statements from the Veteran's private treatment providers dated in December 2004 and September 2008; and the lay statements from the Veteran asserting the occurrence of an additional genitourinary disability caused by VA treatment and proximately due to VA negligence. The urologist should provide the following opinions: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran has any additional genitourinary disability (to include urinary incontinence) due to VA treatment, to include VA treatment dated in 1998, a January 2002 discogram, and an August 2002 surgical procedure. (b) If any additional disability is diagnosed, the urologist should offer an opinion as to whether it at least as likely as not (50 percent probability or greater) that the proximate cause of any identified additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment from 1998 to the present. The urologist should also discuss whether any failure on part of VA to timely diagnose and properly treat the lumbar spine disability caused or contributed to the Veteran's development of any additional disability (including urinary incontinence) and whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished the hospital care, medical or surgical treatment, or examination without informed consent. (c) If any additional disability is diagnosed, the urologist should offer an opinion as to whether it at least as likely as not (50 percent probability or greater) that the proximate cause of any identified additional disability is an event which was not reasonably foreseeable, based on what a reasonable health care provider would have foreseen. 4. Then, forward the Veteran's claims file to a VA cardiologist of sufficient expertise . The cardiologist must review the claims file and must note that review in the report. The cardiologist should acknowledge and discuss the findings in the VA treatment records, the February 2003 and January 2009 VA medical opinions, the May 2007 statement from the Veteran's private treatment provider, and the lay statements from the Veteran asserting the occurrence of an additional heart disability caused by VA treatment and proximately due to VA negligence. The cardiologist should provide the following opinions: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran has any additional heart disability (to include myocardial infarction) due to VA treatment, to include VA treatment notes dated in 1998, a January 2002 discogram, and an August 2002 surgical procedure. (b) If any additional disability is diagnosed, the cardiologist should then offer an opinion as to whether it at least as likely as not (50 percent probability or greater) that the proximate cause of any identified additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical treatment from 1998 to the present. The cardiologist should also discuss whether any failure on part of VA to timely diagnose and properly treat the Veteran's lumbar spine disability caused or contributed to the Veteran's development of any additional heart disability (including myocardial infarction or coronary artery disease) and whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished the hospital care, medical or surgical treatment, or examination without informed consent. (c) If any additional disability is diagnosed, the cardiologist should then offer an opinion as to whether it at least as likely as not (50 percent probability or greater) that the proximate cause of any identified additional disability is event which was not reasonably foreseeable, based on what a reasonable health care provider would have foreseen. 5. Then, readjudicate the issues on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs