Citation Nr: 1330779 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 12-29 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to a compensable rating for a left inguinal hernia, post-operative. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) based upon service-connected disabilities. 3. Entitlement to service connection for bilateral pes planus, including arthritis. 4. Entitlement to service connection for a bilateral lower extremity disorder, claimed as secondary to bilateral pes planus. 5. Entitlement to service connection for a lumbar and thoracic spine disorder, to include as secondary to bilateral pes planus. 6. Entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder, claimed as secondary to bilateral pes planus and associated physical conditions. 7. Entitlement to service connection for a right inguinal hernia, post-operative. 8. Entitlement to service connection for a right foot sprain, claimed as an injury to the right foot. 9. Entitlement to service connection for a bilateral shoulder disorder, to include as secondary to disabilities of the lumbar and thoracic spine. 10. Entitlement to service connection for a cervical spine disorder, claimed as secondary to lumbar and thoracic spine disorder. REPRESENTATION Veteran represented by: Iowa Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from October 1983 to October 1987 and from August 1997 to April 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which granted the Veteran's claim for service connection for a left inguinal hernia and assigned an initial noncompensable rating. His claims for service connection for a right inguinal hernia, a right foot sprain, a pes planus deformity, a lumbar and thoracic spine disorder, a bilateral lower extremity disorder, a bilateral shoulder disorder, a cervical spine disorder and a mood disorder were denied. In addition, his claim for TDIU was denied. In June 2013, the Veteran testified before the undersigned at a hearing sitting at the RO. A hearing transcript has been associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents reveals VA treatment records dated through July 2012, which were considered by the RO in the August 2012 statement of the case (SOC). The issues of entitlement to service connection for a right foot disorder, a cervical spine disorder and a bilateral shoulder disorder are decided herein. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Although the Veteran sustained a right foot sprain in service and has generally asserted experiencing right foot pain, pertinent medical evidence indicates that the Veteran does not have any chronic right foot disorder other than pes planus. 2. Although the Veteran has asserted experiencing bilateral shoulder pain, pertinent medical evidence indicates that the Veteran does not have a chronic bilateral shoulder disorder. 3. Although the Veteran has asserted experiencing cervical spine pain, pertinent medical evidence indicates that the Veteran does not have a chronic cervical spine disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disorder, claimed as a right foot injury, are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a cervical spine disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for a bilateral shoulder disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between a Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. Relevant to the claims adjudicated herein, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, May 2009, June 2009, September 2009, and November 2009 letters, sent prior to the initial May 2010 rating decision, advised the Veteran of the evidence and information necessary to substantiate his claims for service connection, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records, VA outpatient treatment records, various private treatment records and the VA examination reports have been obtained and considered. Additionally, in June 2013, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the July 2013 hearing, the undersigned enumerated the issues on appeal. Also, information was solicited regarding the etiology of the Veteran's claimed right foot, bilateral shoulder and cervical spine disorders, to include the Veteran's allegations that they are related to his pes planus and/or to his lumbar spine disorder. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Service Connection A. Relevant Statutes and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year and three years, respectively, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Right Foot, Cervical Spine and Bilateral Shoulder Disorders The Veteran contends that he suffers from a bilateral shoulder disorder due to the altered biomechanics associated with his back disorders and that his right foot disorder is due to an in-service right foot injury. He further contends that his cervical spine disorder is the cumulative result of exercise rather than a specific back injury or is related to the lumbar spine diagnosis. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001). Service treatment records were negative for complaints, treatments or diagnoses related to any cervical spine or shoulder disorder. In June 1999, complaints of a right foot sprain following a run were noted. A March 2002 service discharge examination was negative for any relevant abnormalities and the Veteran denied experiencing recurrent back pain or a painful shoulder in an accompanying Report of Medical History (RMH). The Veteran also reported that he had sustained a "light sprain of [the] right foot [during the] summer of 2000" and that it had "completely healed." Post-service clinical evidence is also negative for complaints, treatments or diagnoses related to any right foot, cervical spine or shoulder disorder. X-rays conducted in December 2009 found the Veteran's cervical spine, right shoulder and left shoulder to be normal. In addition, a February 2009 X-ray of the right foot found no acute radiographic abnormalities. Although the Veteran complained of cervical spine and shoulder pain in the January 2010 VA examination, no diagnoses related to the right foot (other than pes planus), the cervical spine or the shoulders were made. The medical evidence of record simply does not show an identifiable underlying malady or condition that relates to the Veteran's assertions that he has chronic right foot, cervical spine and/or bilateral shoulder disorders. Here, the Veteran filed his claim for service connection for a right foot disorder in August 2008 and filed his claims for service connection for a cervical spine and a bilateral shoulder disorder in May 2009. No medical evidence supports a finding of a right foot, cervical spine and/or bilateral shoulder disorder at any time pertinent to these appeals. As previously mentioned, the January 2010 VA examiner, following a physical examination, did not diagnosis a right foot disorder other than pes planus, a cervical spine disorder and/or a shoulder disorder despite the Veteran's subjective reports of pain. Thus, there is no competent medical evidence to support a finding that the Veteran has, or at any time pertinent to these claims has had, a right foot disorder other than pes planus, a cervical spine disorder and/or a bilateral shoulder disorder, and neither the Veteran nor his representative has presented or identified any such evidence or opinion. Thus, without a diagnosed or identifiable underlying malady or condition (i.e., a current disability) within the meaning of McClain, fundamentally, there can be no award of service connection. Rather, the evidence indicates no more than the Veteran's own reports of right foot, cervical spine and/or shoulder pain. As for the lay assertions of record, the Board notes that the Veteran is certainly competent to report his own symptoms or matters within his personal knowledge. See Jandreau, supra; Buchanan, supra. In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, matters of medical diagnosis for disability not capable of lay observation are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). This is such a case. Indeed, here, the medical professionals after an evaluation have not identified current disabilities. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. Thus, where, as here, medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. For all the foregoing reasons, the Board finds that service connection for a right foot, cervical spine and bilateral shoulder disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a right foot disorder is denied. Service connection for a cervical spine disorder is denied. Service connection for a bilateral shoulder disorder is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. As noted above, the Veteran served on active duty from October 1983 to October 1987 and August 1997 to April 2002. Thereafter, the Veteran served in the U.S. Army National Guard. The Veteran contends that he served in the Guard from April 2002 to February 2005. In an RO letter dated in September 2008 asking the Veteran to clarify whether he served on active duty during the period from November 2002 to March 2006, the Veteran responded in the negative. See September 2008 statement. Left Inguinal Hernia With regards to the Veteran's claim for a compensable rating for a left inguinal hernia, the Board notes that the Veteran was last afforded a VA examination in January 2010 in order to determine its current nature and severity. He essentially reported that he was asymptotic during this examination. However, during his June 2013 hearing, he indicated that such disability had worsened in that he experienced abdominal pain and received treatment for his hernia. As the Veteran has described worsening symptomatology since the last VA examination, he should be afforded a new VA examination to determine the current nature and severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Bilateral Pes Planus, Bilateral Lower Extremity Disorder, and Lumbar and Thoracic Spine Disorder Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2; see 38 C.F.R. § 19.9. Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). With regards to the Veteran's claimed bilateral pes planus and bilateral lower extremity disorder, he acknowledges that his pes planus preexisted service but maintains that it was worsened by service and that his bilateral lower extremity disorder was caused by his pes planus. A January 2010 VA examiner diagnosed a mild bilateral pes planus deformity, indicated that pes planus was present on service entrance in "December 1989," and suggested that any biomechanical changes would return to normal should this pes planus be treated. The examiner further opined that the Veteran's bilateral lower extremity disorders, diagnosed as mild posterior tibial tendonitis and a bilateral deltoid ligament strain of the ankles, were caused by biomechanical changes brought on by the Veteran's pes planus. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). The March 1983 enlistment examination report for the Veteran's first period of active duty shows no pes planus disorder was identified. The May 1997 enlistment examination report for the Veteran's second period of active duty shows no pes planus disorder was identified. Accordingly, the Board finds that 38 U.S.C.A. § 1111 is for application. Consequently, a new opinion is necessary for purposes of addressing the nexus question under the appropriate standard. Also, if service connection is established for pes planus either on an incurred or aggravated basis, the Board finds that an opinion should be obtained on whether the Veteran has a lumbar and thoracic spine disorder secondary to the pes planus disorder. Acquired Psychiatric Disorder, to include a Mood Disorder With regards to the Veteran's claimed mood disorder, the Board notes that a December 2009 VA examiner found the Veteran's "musculoskeletal problems [were] in fact the cause of his mood problems." The examiner further noted that "if the [V]eteran is found to have a significant number of rated physical medical conditions arising on active duty, then the aforesaid mood disorder would be regarded as likely service connected, arising from service connected conditions." However, this examiner did not identify which of the Veteran's claimed disorders, if any, would amount to a "significant number." Also, service connection is currently only in effect for left inguinal hernia but that might change as the result of the development ordered herein. Accordingly, the Board finds that another opinion addressing the foregoing deficiency should be obtained. Right Inguinal Hernia, Post-Operative A July 2005 operative report from Paradise Valley Hospital shows that the Veteran underwent a right inguinal hernia repair. The Veteran claims that in addition to the hernia on the left side documented in service, the Veteran also had a hernia on the right side but it was not repaired until a later point in time. The Board will procure a medical opinion on the likelihood that the right hernia had its onset during service. TDIU In addition, the Veteran has alleged being unemployable due to disabilities incurred in service. The Board notes that the Veteran currently has not been adjudicated as having any compensable service-connected disabilities. The pending claim for an increased rating for a left inguinal hernia, as well as the claims for service connection, may therefore affect his eligibility for a TDIU. The Board thus finds that at the conclusion of the requested development, an opinion should be obtained on whether the Veteran is unemployable on account of service-connected disabilities. Additionally, due to the length of time which will elapse on remand, updated VA treatment records dated from July 2012 to the present from the Iowa VA Medical Center (VAMC) that are not already associated with the claims file should be obtained for consideration in the Veteran's appeals. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's updated treatment records from the Iowa VAMC dated from July 2012 to the present. All efforts to obtain these records should be documented in the claims file. If no such records are available, the Veteran should be so informed and also told of the efforts to obtain the records. 2. After obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected left inguinal hernia, post-operative and to determine whether the Veteran's right inguinal hernia is related to service. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. Left Inguinal Hernia Based on examination of the Veteran, and review of all pertinent evidence, the examiner should render specific findings as to whether the left inguinal hernia was recurrent, reducible, well-supported by a truss or belt or operable. Right Inguinal Hernia Is it at least as likely as not (50 percent or greater probability) that the Veteran's right inguinal hernia is related to the Veteran's military service from August 1997 to April 2002? The examiner must address the Veteran's contention that in addition to the left inguinal hernia documented in service, the Veteran also had a hernia on the right side but it was not repaired until a later point in time. The opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. After obtaining any outstanding records, send the claims file to an appropriate examiner for an opinion in regard to the Veteran's claimed bilateral pes planus and lumbar and thoracic spine disabilities. The examiner is asked to furnish an opinion with respect to the following questions: Bilateral Pes Planus (a) Is it clear and unmistakable (i.e., highest degree of medical certainty) that the Veteran entered service during his first period of service (October 1983 to October 1987) or during his second period of service (August 1997 to April 2002) with a pre-existing bilateral pes planus disorder? (b) If yes, is it clear and unmistakable (i.e., highest degree of medical certainty) that the Veteran's pre-existing bilateral pes planus WAS NOT aggravated beyond the natural progress of the disorder by his first period of service (October 1983 to October 1987) or during his second period of service (August 1997 to April 2002)? In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the preexisting condition. (c) If the Veteran DID NOT clearly and unmistakably (i.e., highest degree of medical certainty) enter his first period of service (October 1983 to October 1987) or second period of service (August 1997 to April 2002) with pre-existing bilateral pes planus, is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current bilateral pes planus is etiologically related to such service? (d) Does the Veteran currently have plantar fasciitis? If yes, is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current plantar fasciitis is etiologically related to either periods of service? The opinion must include review of the entire claims file including the following documents: (i) March 1983 enlistment Report of Medical Examination; (ii) March 1983 enlistment Report of Medical History; (iii) August 1987 Statement of Option (declining a Separation Medical Examination); (iv) December 1989 reserve enlistment Report of Medical Examination; (v) December 1989 reserve enlistment Report of Medical History; (vi) May 1997 enlistment Report of Medical Examination; (vii) May 1997 enlistment Report of Medical History; (viii) July 1998 service treatment record; (ix) June 1999 service treatment records; (x) July 2000 service treatment record; (xi) March 2002 separation Report of Medical Examination; and (xii) March 2002 separation Report of Medical History. The opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. Lumbar and Thoracic Spine Disabilities Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar and thoracic spine disabilities were (a) caused by or (b) aggravated by the bilateral pes planus? The examiner must address the Veteran's contention that the biomechanical changes in his lower extremities on account of his bilateral pes planus caused him to develop or contribute to his lumbar and thoracic disabilities. If such aggravation is found, the examiner should address the following medical issues: (i) the baseline manifestations of the Veteran's lumbar and thoracic spine disabilities found prior to aggravation; and (ii) the increased manifestations that are proximately due to the bilateral pes planus. The opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. After the above development, return the claims file to the December 2009 VA examiner who conducted the mental disorders examination for an addendum opinion (or another suitable examiner if he is unavailable) on the psychiatric issue. Provide the examiner with a list of the Veteran's service connected disabilities. In regard to the examiner's finding that the Veteran had a mood disorder due to his "general medical condition" the examiner is asked to opine on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's mood disorder is (a) caused by or (b) aggravated by his service connected disabilities? If such aggravation is found, the examiner should address the following medical issues: (i) the baseline manifestations of the Veteran's mood disorder found prior to aggravation; and (ii) the increased manifestations that are proximately due to the service connected disabilities. If it is not possible to distinguish symptomatology caused by the service connected disabilities from symptomatology caused by the nonservice connected disabilities without resort to speculation, then the examiner should say so. The opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 5. After the above development, obtain an opinion based on a review of the claims file from an appropriate examiner that addresses the following: Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's service connected disabilities render him unable to secure or follow a substantially gainful occupation. The examiner should discuss the Veteran's employment history and educational attainment; however, the examiner must not take into consideration factors other than the Veteran's service-connected disabilities (i.e., age or nonservice-connected disabilities). 6. After the above actions have been completed, readjudicate the Veteran's claims to include consideration of whether referral of TDIU on an extra-schedular basis to the Director, C&P Service is warranted. If the claims remain denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs