Citation Nr: 1329492	
Decision Date: 09/13/13    Archive Date: 09/20/13

DOCKET NO.  09-47 834	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, 
Idaho


THE ISSUES

1.	Entitlement to service connection for a right hip 
disability.

2.	Entitlement to service connection for a left knee 
disability, status post total knee replacement.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

H. Yoo, Counsel




INTRODUCTION

The Veteran served on active duty from September 1968 to 
September 1972. 
 
This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2009 rating decision of 
the Department of Veterans Affairs (VA) in Boise, Idaho, 
which denied the Veteran's claim.

In January 2013, the Board remanded this matter for further 
development.  The Board is satisfied that there has been 
substantial compliance with the remand directives and the 
Board may proceed with review.  See Stegall v. West, 11 Vet. 
App. 268 (1998).

The Board notes that, in addition to the paper claims file, 
there is a Virtual VA paperless claims file associated with 
the above 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 issue on 
appeal.

The issue entitlement to service connection for a left knee 
disability, status post total knee replacement, 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 Veteran's current diagnosis of osteoarthritis of the 
right hip did not manifest until years after the Veteran's 
military service and is not attributable to his military 
service.





CONCLUSION OF LAW

The criteria for establishing service connection for a right 
hip disability have not been met.  38 U.S.C.A. §§ 1101, 
1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 
3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.	The Veterans Claims Assistance Act of 2000

With respect to the appellant's claims decided herein, VA 
has met all statutory and regulatory notice and duty to 
assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326 (2012). 
 
Under the VCAA, when VA receives a complete or substantially 
complete application for benefits, it is required to notify 
the claimant and his representative, if any, of any 
information and medical or lay evidence that is necessary to 
substantiate the claim.  See 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).  In Pelegrini v. Principi, 18 Vet. 
App. 112, 120-21 (2004) (Pelegrini II), the United States 
Court of Appeals for Veterans Claims (Court) held that 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 seek to provide; and (3) that the claimant 
is expected to provide. 

VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 
5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. 
§§ 3.102, 3.56(a), 3.159 and 3.326(a) (2012).  Upon receipt 
of a complete or substantially complete application for 
benefits, VA is required to notify the claimant and his or 
her 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); 38 C.F.R. § 3.159(b); 
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 seek to provide; 
(3) that the claimant is expected to provide. 

The notice requirements described above apply to all five 
elements of a service connection claim: (1) veteran status; 
(2) existence of disability; (3) connection between service 
and the disability; (4) degree of disability; and (5) 
effective date of benefits where a claim is granted.  
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
 
In December 2008, February 2013, and June 2013 the agency of 
original jurisdiction (AOJ) provided the notice required by 
38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) 
(2012).  Specifically, the AOJ notified the Veteran of 
information and evidence necessary to substantiate the 
claims for service connection; information and evidence that 
VA would seek to provide; and information and evidence that 
the Veteran was expected to provide.  The December 2008 
letter also provided the Veteran with the notice pursuant to 
Dingess. 

All the law requires is that the duty to notify is satisfied 
and that claimants are given the opportunity to submit 
information and evidence in support of their claims.  Once 
this has been accomplished, all due process concerns have 
been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 
C.F.R. § 20.1102 (2012) (harmless error).  In view of the 
foregoing, the Board finds that the Veteran was notified and 
aware of the evidence needed to substantiate his claim, as 
well as the avenues through which he might obtain such 
evidence, and of the allocation of responsibilities between 
himself and VA in obtaining such evidence.  Accordingly, 
there is no further duty to notify. 

Next, VA has a duty to assist the Veteran in the development 
of the claim.  This duty includes assisting him in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  
 
The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the Veteran.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The VA has obtained copies of the 
Veteran's service treatment and personnel records, and has 
reviewed the evidence in the Virtual VA system.

The Veteran's service and VA medical records are in the 
file.  Private medical records identified by the Veteran 
have been obtained, to the extent possible.  
 
The duty to assist also includes providing a medical 
examination or obtaining a medical opinion when such is 
necessary to make a decision on a claim, as defined by law.  

The Veteran was also afforded VA examination in February 
2013, and the results of which have been included in the 
claims file for review.  This examination involved review of 
the claims file and thorough examinations of the Veteran.  
Given the foregoing, the Board finds that the VA has 
substantially complied with the duty to obtain the requisite 
medical information necessary to make a decision on the 
Veteran's claim.

Additionally, the Board finds there has been substantial 
compliance with its January 2013 remand directives with 
respect to this appeal.  Regarding the Veteran's in-service 
treatment records, the Board notes that the claim was 
previously remanded to obtain x-ray and clinical reports 
from the Naval Hospital in Jacksonville, Florida, dated 
August and/or September 1972.  According to a July 2013 
Memorandum, a formal finding on the unavailability of these 
records were made.  A negative response was received and the 
Veteran was notified.  No response from the Veteran was 
received.  

The Board notes that the Court has recently noted that "only 
substantial compliance with the terms of the Board's 
engagement letter would be required, not strict compliance."  
See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also 
Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding 
that there was no Stegall (Stegall v. West, 11 Vet. App. 
268) violation when the examiner made the ultimate 
determination required by the Board's remand.)  As 
previously stated, the Veteran was afforded a VA examination 
and the AMC attempted to locate additional in-service 
records from the Naval Hospital.  Based on the foregoing, 
the Board finds that the AMC substantially complied with the 
mandates of its remands.  See Stegall, supra, (finding that 
a remand by the Board confers on the appellant the right to 
compliance with its remand orders).

As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably 
affects the outcome of this case, the Board finds that any 
such failure is harmless.  See Newhouse v. Nicholson, 497 
F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes 
that the Veteran is represented in this appeal.  See Overton 
v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has 
submitted argument and evidence in support of the appeal.  
Based on the foregoing, the Board finds that the Veteran has 
had a meaningful opportunity to participate in the 
adjudication of his claims such that the essential fairness 
of the adjudication is not affected.

II.	The Merits of the Claim

The Veteran and his representative contend that his current 
hip disability is related to his active military service.

Governing rules and regulations

Under the laws administered by VA, service connection may be 
granted for a disability resulting from disease or injury 
incurred in or aggravated by active service.  See 38 
U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).  
Service connection may also be granted for any disease 
diagnosed after discharge from service when all the 
evidence, including that pertinent to service, establishes 
that the disease was incurred during service.  38 C.F.R. § 
3.303(d). 
 
Generally, the evidence must show: (1) the existence of a 
present disability; (2) in-service incurrence or aggravation 
of a disease or injury; and (3) a causal relationship 
between the present disability and the disease or injury 
incurred or aggravated during service.  38 C.F.R. § 
3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. 
Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 
(2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 
78 F.3d 604  (Fed. Cir. 1996) (table)). 
 
As an alternative to the nexus requirement, service 
connection for these chronic disabilities may be established 
through a showing of continuity of symptomatology since 
service.  38 C.F.R. § 3.303(b) (2012).  The option of 
establishing service connection through a demonstration of 
continuity of symptomatology rather than through a finding 
of nexus is specifically limited to the chronic disabilities 
listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 
F.3d 1331 (Fed. Cir. 2013).  

Here, the Board notes that the Veteran has been diagnosed 
with osteoarthritis of the hip, which is a chronic disease 
under 38 C.F.R. § 3.309(a) and is subject to the provisions 
governing service connection based upon continuity of 
symptomatology.

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, 
such veteran's treatment records, and all pertinent medical 
and lay evidence.  See 38 U.S.C.A. § 1154(a) (West 2002 and 
Supp. 2012). 
 
The United States Court of Appeals for the Federal Circuit 
(Federal Circuit) has rejected the view that competent 
medical evidence is required when the determinative issue in 
a claim for benefits involves either medical etiology or a 
medical diagnosis.  Under 38 U.S.C.A. § 1154(a), lay 
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.  Davidson v. Shinseki, 
581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. 
Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. 
Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 
 
The Board has thoroughly reviewed all the evidence in the 
Veteran's claims file. Although 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 her 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 appellant). 
 
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 appellant.  Equal 
weight is not accorded to each piece of evidence contained 
in the record; not every item of evidence has the same 
probative value.  When all the evidence is assembled, VA is 
responsible for determining whether the evidence supports 
the claim or is in relative equipoise, with the appellant 
prevailing in either event, or whether a preponderance of 
the evidence is against a claim, in which case, the claim is 
denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Factual background and analysis

According to the Veteran's in-service treatment records, in 
August 1972 the Veteran was treated for pain in his right 
hip which he stated was worse after exercise.  The pain was 
described as being in his anterior groin with some radiation 
in the greater trochanter.  It was noted that the pain was 
causing a limp.  There was no hernia and the sensory was 
intact.  The Veteran had good range of motion in the hip.  
The provisional diagnosis was favoring persistent muscle 
strain although pathology in the joint space could not be 
ruled out.  

The Veteran's September 1972 separation examination noted 
the Veteran was evaluated for pain in the right through at 
the Naval Hospital in Jacksonville, Florida.  As stated 
above, these records are unavailable.  A hip problem was 
noted but was not considered disabling and the Veteran 
qualified for reenlistment. 

Turning to the post-service treatment records, there is no 
evidence the Veteran complained of, was treated for, or 
diagnosed with a hip disability.  The Board notes the 
Veteran has complained of joint pain and while it is clear 
he indicated the pain was in his knees, it is unclear 
whether this included his right hip.

Pursuant to the Board remand, the Veteran was afforded a VA 
examination in February 2013 where he stated he was 
diagnosed with osteoarthritis of the hips in the 2000s.  The 
Veteran reported his right hip pain makes sitting difficult.  
He stated the pain is constant at a level of 5/10.  He 
stated he did not seek treatment for his pain because he was 
told to "live with it."  The Veteran stated his pain started 
months prior to separation without injury and although he 
was seen by doctors, it had not resolved.  He reported he 
did not seek treatment for his pain until 1980 but could not 
recall whether a diagnosis was given and that the treatment 
records from this time were unavailable.  The Veteran did 
not seek treatment from 1980 to the present.  He stated that 
he feels his "walk is cocked off to the left side due to a 
leg length or other problem related to the knee operation 
which could ma[k]e the right 'hip[/]thigh' sore[.]"   

An x-ray taken in February 2013 revealed the bony pelvis did 
not have any abnormality.  The calcifications over the 
pelvis was consistent with phleholiths and degenerative 
changes was noted in both hips but slightly more prominent 
on the right.  No fracture or acute bony pathology was 
noted.

The range of motion for the right hip was 125 degrees or 
greater flexion with pain at 90 degrees, and 0 degrees 
extension with pain.  There was abduction lost beyond 10 
degrees and adduction was limited such that he could not 
cross his legs.  Rotation was limited such that the Veteran 
could not toe-out more than 15 degrees.  He was able to 
perform repetitive-use testing with three repetitions.  He 
did not have additional limitation in range of motion of the 
hip and thigh following repetitive-use testing but did have 
functional loss and/or functional impairment of the hip and 
thigh.  There was excessive fatigability, incoordination, 
impaired ability to execute skilled movements smoothly, and 
pain on movement.

The Veteran had normal strength in right hip flexion, 
abduction, and extension. There was no ankylosis.  There was 
no evidence of hip surgery or scars.  The Veteran used a 
cane for assistance.  The examiner also determined the 
Veteran's right hip disability did not impact his ability to 
work.  

Upon review of the claims file, a physical examination, and 
the Veteran's lay statements, the examiner opined it was 
less likely than not (less than 50 percent probability) that 
the right hip disability incurred in or was caused by an in-
service injury, event, or illness.  Regarding the Veteran's 
in-service complaint of right hip pain in 1972, the examiner 
stated there was no plausible diagnosis that could be made.  
The examiner noted that based on the interview with the 
Veteran there was no evidence he sought treatment from the 
late 1980s to the present.  While the Veteran's diagnosis is 
mild osteoarthritis of both hips based on the x-ray, the 
right side manifested objective loss of the internal 
rotation and some external rotation characteristics.  The 
pain with the rotation, loss of motion, and anterior thigh 
radiation was classic.  The examiner stated he was "not able 
to biologically/plausibly relate this to any causation 
except genetics/aging with consideration of the other common 
causation in the areas of infection, congenital traumatic, 
and or neoplastic, assuming that the osteoarthritis is a 
metabolic condition, otherwise stated, the [service] 
experience neither caused it nor aggravated it."

The examiner further stated that the Veteran's left knee 
condition did not cause or aggravate the right hip 
disability.  Although the left knee disability can alter the 
gait, the examiner stated it does not have that affect in 
this case as the Veteran is able to walk with a cane to 
relieve the pain.  The examiner also stated the medical 
literature does not support the Veteran's claim that the 
right hip/thigh condition is caused by and/or aggravated by 
his left knee. 

In addition, the examiner addressed the theory that some 
radiation of the right gluteal pain to the lateral right 
lower leg and foot may be related to the left knee pain.  
However, although it is possible the Veteran had 
degenerative disc disease/ degenerative joint disease of the 
back that caused this, the examiner stated a lower extremity 
examination revealed the deep tendon reflexes, sensation, 
and motor function were intact by VA standards.  
Accordingly, the examiner concluded that the complaint is 
not related to (caused and/or aggravated by) the left knee, 
no matter what the etiology of the later complaint may be. 

For the reasons that follow, the Board finds that service 
connection is not warranted for a right hip disability.  
Although the Board accepts that the Veteran had complained 
of hip pain during service, the September 1972 separation 
examination determined it was not considered disabling.  
Furthermore, there is no objective medical evidence that he 
sustained an injury or was diagnosed with the current 
disability during service.  Rather, the Veteran did not 
exhibit any symptoms of his current disability until many 
years since separation.  Here, the record indicates that the 
Veteran reported he was diagnosed in the early 2000s; 
approximately thirty years after separation from service.  
See 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]; see 
also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) 
[affirming the Board where it found that the veteran failed 
to account for the lengthy time period after service for 
which there was no clinical documentation of the claimed 
condition].   As such, the Board also finds that the weight 
of the evidence demonstrates no continuity of symptomatology 
of a right hip disability since separation of service.

The Board has considered the Veteran's lay assertions that 
his right hip disability is due to his military service.  In 
that regard, the Board acknowledges that the Veteran can 
attest to factual matters of which he has first-hand 
knowledge, such as symptomatology.  His assertions in that 
regard are entitled to some probative weight.  See 
Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  
Laypersons, however, are not generally competent to render 
an opinion as to the cause or etiology of any current 
disability because they do not have the requisite medical 
knowledge or training.  See Rucker v. Brown, 10 Vet. App. 
67, 74 (1997) (stating that competency must be distinguished 
from weight and credibility, which are factual 
determinations going to the probative value of the 
evidence).  

In this case, however, the only evidence of record in 
support of the Veteran's claim consists of his own lay 
statements.  The Veteran's etiological theories have not 
been supported by a medical professional.  Furthermore, 
given the complex nature of the Veteran's right hip 
disability and the lack of medical evidence associating the 
disability to his military service, the Board concludes that 
the Veteran's statements and opinions as to diagnosis and 
etiology are of minimal probative weight.  See Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in 
footnote 4 that a veteran is competent to provide a 
diagnosis of a simple condition such as a broken leg, but 
not competent to provide evidence as to more complex medical 
questions).  Accordingly, his opinions are not probative and 
are outweighed by the medical evidence of record.

Although the Board is sympathetic to the Veteran's claim, 
based on the lack of objective medical evidence 
demonstrating an etiological link between the right hip 
disability and his military service, the Board concludes 
that the preponderance of the evidence is against granting 
service connection.  As such, the benefit-of-the-doubt rule 
does not apply and the claim for entitlement to service 
connection for a right hip disability must be denied.  See 
38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); see 
generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).


ORDER

Entitlement to service connection for a right hip disability 
is denied.


REMAND

Unfortunately, another remand is required in this case.  
Although the Board sincerely regrets the additional delay, 
it is necessary to ensure that there is a complete record 
upon which to decide the Veteran's claim so that he is 
afforded every possible consideration.  VA has a duty to 
assist claimants in obtaining evidence needed to 
substantiate a claim.  38 U.S.C.A. §§ 5107(a) 5103A (West 
2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012).

In the January 2013 remand, the Board determined this appeal 
was not yet ripe for appellate review as the medical records 
available for review were incomplete.  The Veteran reported 
having undergone left knee surgery in 1991 at the Boise VA 
Medical Center.  However, the earliest medical records 
available for review were dated in 2000.  

The Board stated the records reflecting the 1991 surgery 
were obviously pertinent to the appeal; however, records 
reflecting the condition of his knee at any point more 
proximate to service would be helpful to adjudicators in 
reviewing his appeal.  

Any VA medical records are deemed to be constructively of 
record in proceedings before the Board and should be 
obtained prior to further review of the claims file. Bell v. 
Derwinski, 2 Vet. App. 611 (1992).  As such, the Board 
directed the RO to obtain recent outpatient treatment 
records prior to 2000, namely records from a 1991 knee 
surgery from the VA Medical Center (VAMC) in Boise, Idaho.  

Although a supplemental statement of the case was issued in 
July 2013, there is no indication these records have been 
associated with the claims file.  A review of the Virtual VA 
electronic record also shows that these records have not 
been included. Furthermore, there is no indication any 
efforts were made to obtain these records.  Thus, in order 
to comply with the Board's January 2013 remand, the RO must 
take additional action to obtain VA treatment records prior 
to 2000.  See Stegall v. West, 11 Vet. App. 268 (1998).

If these record(s) are located and obtained, the Board is of 
the opinion that an addendum to the July 2013 examination is 
needed prior to further appellate review for purposes of 
obtaining a definitive opinion on whether the Veteran's 
current disability is etiologically related to his military 
service.



Accordingly, the case is REMANDED for the following action:

1.	Take appropriate action to obtain all 
of the Veteran's VA treatment records 
that are not currently incorporated 
into the claims file, namely records 
prior to 2000 which include a record 
of a 1991 left knee surgery.  The 
Veteran should also be asked to 
identify any additional treatment 
received (VA or private) which the 
records have not been associated with 
the claims file.  The Veteran should 
also be requested to submit any 
private and VA treatment records he 
has in his possession.

If any requested records are not 
available, or the search for any such 
records otherwise yields negative 
results, that fact must clearly be 
documented in the claims file.  
Efforts to obtain these records must 
continue until it is determined that 
they do not exist or that further 
attempts to obtain them would be 
futile.  The non-existence or 
unavailability of such records must 
be verified and this should be 
documented for the record.  
 
Notice must be provided to the 
Veteran and his representative.  The 
notice must contain the identity of 
the records VA was unable to obtain, 
an explanation of the efforts VA made 
to obtain the records, a description 
of any further action VA will take 
regarding the claim and a notice that 
the Veteran is ultimately responsible 
for providing the evidence.  The AMC 
should also inform the Veteran that 
he can also provide alternative forms 
of evidence.

2.	If the treatment records of the 1991 
knee surgery are located and 
obtained, return any newly obtained 
records along with the claims file 
and a copy of this remand to the July 
2013 examiner for an addendum 
opinion.  In light of the newly 
obtained records, the examiner is 
asked whether it is at least as 
likely as not (i.e., a 50 percent 
probability or greater) that the 
currently shown disability is caused 
by or related to the Veteran's 
military service. 

If this examiner is not available, 
send the claims file and a copy of 
this remand to another appropriate 
examiner to address the above opinion 
request. 

Any opinion(s) offered should be 
accompanied by a clear rationale 
consistent with the evidence of 
record.  The examiner should discuss 
the relevant in-service and post-
service treatment records and the 
Veteran's contentions and lay 
history.  If the examiner cannot 
provide an opinion without resorting 
to mere speculation, the examiner 
should so state and explain why with 
a supporting rationale. 

3.	After completion of the foregoing and 
undertaking any further development 
deemed warranted by the record, the 
Veteran's claim should be 
readjudicated based on the entirety 
of the evidence.  If the claim 
remains denied, the Veteran and his 
representative must be issued a 
Supplemental Statement of the Case.  
An appropriate period of time must be 
allowed for response.

The appellant has the right to submit additional evidence 
and argument on the matter or matters the Board has 
remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs