Citation Nr: 1330841 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 07-26 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable rating for hemorrhoids. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a low back disorder, diagnosed as spondylosis of the lumbar spine. 4. Entitlement to service connection for a respiratory disorder, claimed as asthma, bronchitis and chronic obstructive respiratory disorder (COPD). 5. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to September 1971 and from August 2002 to June 2004. This matter is on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This appeal was remanded by the Board in March 2011 for further development and is now ready for disposition. An appeal on the issue of entitlement to service connection for a gastroesophageal disorder, diagnosed as gastroesophageal reflux disease (GERD) and a hiatal hernia, was also perfected by the Veteran. However, in an August 2012 decision, he was granted service connection for this disorder. This represents a full grant of the benefit sought on appeal, and it is no longer before the Board. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). The issue of entitlement to service connection for hypertension 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. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran's hemorrhoids have been characterized by irritation, pain and occasional flare-ups; hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, or persistent bleeding and with secondary anemia, or with fissures, has not been shown. 2. It is at least as likely as not that the Veteran's COPD is attributable to active duty service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.114, Diagnostic Code (DC) 7336 (2012). 2. The criteria for service connection for COPD have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. First, the Veteran's increased rating claim for his hemorrhoids arises from his disagreement with the initial rating following the grant of service connection. Once service connection is granted, the claim is substantiated. Therefore, additional notice is not required and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, 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). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the Veteran submitted treatment records from a private facility and his own statements in support of his claim. VA examinations with respect to the issues on appeal were also obtained in October 2005, December 2009, and July 2012. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Board finds that the VA examinations obtained are more than adequate, as they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). It is also noted that this appeal was remanded by the Board in March 2011 for further development. Specifically, the Board instructed the RO to contact the State Adjutant General of Alabama in order to determine the precise periods of active duty, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The RO was also instructed to acquire all VA treatment records for the period from 1971 to 2007 and since September 2010. The remaining instructions to the RO are no longer applicable, as these relate to claims that have either already been granted or are being granted in this decision. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the RO was able to acquire VA treatment records as far back as 1998. Although records from prior to that point were not acquired, the Board is satisfied that a sufficient effort was made to acquire them. In response to the request for information regarding the Veteran's National Guard service, the record now includes a "retirement points history statement," although this does not specify when the Veteran was on ACDUTRA or INACDUTRA. The Board is aware of the argument submitted in July 2013 by the Veteran's representative, who asserts that this development is inadequate, as the March 2011 Remand instructed a specific delineation of the Veteran's periods of active duty, ACDUTRA and INACDUTRA. However, a remand is not necessary to correct this potential deficiency. Certainly, it is obvious that the development undertaken by the RO does not provide exactly what the Board required. However, it is emphasized that substantial compliance, as opposed to strict compliance, is all that is required. In this case, the Board is able to understand from the available evidence, to a substantial degree, when the Veteran was on active duty, ACDUTRA and INACDUTRA. Moreover, it is unlikely that an additional remand would produce a document that indicates the precise dates of each type of service. Therefore, the Board concludes that a remand on this basis would not serve any productive purpose. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in October 2012. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Finally, with regard to the Veteran's respiratory disorder claim, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran currently has a noncompensable rating for his hemorrhoids under 38 C.F.R. § 4.114, DC 7336, the only applicable diagnostic code for evaluating this disability. A compensable rating is warranted in cases where the evidence indicates the presence of external or internal hemorrhoids which are: * large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences (10 percent); or * with persistent bleeding and with secondary anemia, or with fissures (20 percent). See 38 C.F.R. § 4.114, DC 7336. When assigning ratings under this diagnostic code, it should be noted that DC 7336 does not contain successive rating criteria. In other words, not all criteria for a 10 percent rating must be met before a 20 percent rating may be considered. Rather, the Board must identify which disability rating most accurately reflects a claimant's disability picture, irrespective of formal rules of construction. Compare Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009) with Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). If there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the Veteran's disability picture more nearly approximates the criteria required for that rating. After reviewing all relevant evidence, the Board determines that a compensable rating is not warranted, as there have not been indications of thrombotic irreducible hemorrhoids or persistent bleeding with secondary anemia. For example, at a VA examination in October 2005, the Veteran stated that he underwent a colonoscopy in either 2002 or 2003, where he was found to have hemorrhoids. While, the VA examiner noted the presence of external hemorrhoids upon examination, but no fissures were observed. At his second VA examination in December 2009, the Veteran stated his hemorrhoids were aggravated by riding in military vehicles and he was prescribed suppositories. Since that time, he has experienced an exacerbation approximately once every 6 months. During these exacerbations, he reported problems with irritation, bleeding and stinging. However, upon examination, no external hemorrhoids were observed, nor was there evidence of fissure or tags. At his most recent VA examination in July 2012, the Veteran stated that he had been seeking treatment for hemorrhoids since 2004. While they would flare-up approximately once per month, characterized by itching, burning and some bleeding, he had needed only over the counter topical creams to relieve his symptoms. Upon examination, the examiner characterized the Veteran's hemorrhoids as "mild or moderate," and hemorrhoids that were large or thrombotic were not observed. Significantly, the Veteran gave virtually no indication of hemorrhoids during the numerous outpatient evaluations he has undergone. Based on this information, the Board finds that the Veteran has hemorrhoids that are periodically problematic. However, no physician has observed hemorrhoids that were "large or thrombotic," nor has there been any indication that they are irreducible. Indeed, the fact that no external hemorrhoids were observed at his VA examination in December 2009 would indicate that they are reducible. Moreover, no physician has observed the presence of persistent bleeding or that the Veteran has experienced anemia resulting from it. In fact, the Veteran has never alleged persistent bleeding. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his hemorrhoids are worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is considered to be competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, considered competent to identify a specific level of disability of his hemorrhoids according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's hemorrhoids has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Next, the Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court of Appeals for Veteran's Claims has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Indeed, the Veteran has not truly explained any such unusual symptoms. As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, although the Court of Appeals for Veterans Claims has held that a claim for an increased rating is a claim for the highest rating possible, to include a total disability rating for individual unemployability (TDIU), the evidence indicates that the Veteran is already in receipt of a TDIU rating and there is no indication that he has disagreed with the effective date of that rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Therefore, the issue of entitlement to TDIU is no longer part of the underlying appeal. Based on evidence of record, the Board determines that a compensable rating is not warranted for the Veteran's hemorrhoids. As such, the appeal is denied. Service Connection As is applicable here, the Veteran is claiming entitlement to service connection for a respiratory disorder, which he asserts is related to his second period of active duty service from August 2002 to June 2004. In his January 2006 statement, he specifically asserted that his bronchitis has existed since active duty. He also points out that it was clinically observed via VA examination in October 2005, which was only 16 months after he left active duty. He has also attributed his respiratory disorder to asbestos exposure while in service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In some cases, the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). However, the United States Court of Appeals for the Federal Circuit has recently held that service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a). As is relevant here, respiratory disorders and most musculoskeletal injuries are not considered chronic disorders under 38 C.F.R. § 3.309(a), and may not be service connected under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, it has been held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As an initial matter, the Veteran has not asserted that his disorder is related to his first period of active duty service August 1969 to September 1971, nor does the evidence so indicate. Moreover, his service treatment records from that period of time do not reflect complaints of, treatment for, or a diagnosis related to a respiratory disorder. Additionally, the Veteran's separation physical examination in July 1971 fails to document any complaints of or observed symptoms related to a respiratory disorder. Therefore, there is no clinical evidence that the claimed disorder was shown during the Veteran's first period of active duty Thus, the only question for consideration is whether the disorder may be related to his second period of active duty from August 2002 to June 2004. After a review of the evidence of record, the Board has determined that service connection is warranted for COPD. Regarding his respiratory disorder claim, the service treatment records from the Veteran's second period of active duty service from August 2002 to June 2004 do indicate that he was evaluated for such a disorder. Notably, his separation physical examination from December 2003 indicated complaints of symptoms such as dyspnea when walking or when sleeping. He also noted other symptoms such as coughing, bronchitis and wheezing, although he denied ever being prescribed an inhaler for these symptoms. A pulmonary functioning test (PFT) taken that same month revealed a "very minimal obstructive ventilator defect." Although the Veteran's obstructive respiratory was characterized as "very minimal," the Board notes that no respiratory disorder was observed at the time of his induction physical examination in July 2002. As noted above, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrated that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Here, in the absence of a respiratory disorder being noted upon entry into service, the Board must presume that his later-identified "obstructive ventilator defect" arose during service. While this "presumption of soundness" may be rebutted, this can be accomplished only by a showing, by clear and unmistakable evidence, that the disease or injury both (a) existed prior to service, and (b) was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). As to the first prong of this test, it is very clear that the Veteran was treated for respiratory disorders prior to service, the induction physical examination in July 2002 notwithstanding. Specifically, a medical evaluation in September 1982 diagnosed him with bronchitis. Moreover, an evaluation in March 1995 diagnosed COPD, and another evaluation in September 1996 observed mild hyperinflation and peribronchial cuffing. Therefore, there is clear and unmistakable evidence that the Veteran's respiratory disorder existed before he entered his second period of active duty. However, there has not been clear and unmistakable evidence that his disorder was not aggravated by service. In this regard, the Board notes the findings of a VA examiner in June 2011 who, after a review of the claims file and examination of the Veteran, provided the opinion that it was less likely than not that the Veteran's COPD was aggravated by service. In providing this opinion, the examiner noted that the Veteran had "minimal problems" with this condition now, and that his tobacco use was more likely to be the primary factor in his respiratory symptoms. However, a conclusion that the Veteran's COPD was "less likely than not" aggravated by his active duty service is not the sufficient legal standard. Rather, it is VA's burden to show, by clear and unmistakable evidence, that his COPD was not aggravated by service. There is insufficient evidence to meet this standard. Moreover, it is unlikely that any further development would be fruitful in this regard. Therefore, the Board must presume that the Veteran's respiratory functioning was normal when he re-entered active duty service in 2002. Consequently, his subsequent diagnosis of an obstructive ventilator defect in December 2003 during active duty service can only be attributed to such service. As such, the Board finds that service connection is warranted for a respiratory disorder currently diagnosed as COPD. As there is no basis to conclude that the Veteran currently suffers from chronic asthma, bronchitis, or other respiratory much less that it's related to service, the Board finds that service connection is not warranted for a respiratory disability other than COPD. In conclusion, the Board has reviewed all of the relevant evidence of record and concludes that service connection is warranted for COPD. ORDER An initial compensable rating for hemorrhoids is denied. Service connection for COPD is granted. REMAND Regarding the Veteran's hypertension, left knee, and low back claims, additional development is required before these claims may be adjudicated. As an initial matter, it is well-established in the evidence of record that he has been treated for hypertension since at least March 1995. Moreover, the fact that he has been treated with hypertension was noted at the time of his induction physical examination in June 2002. Thus, for purposes of this appeal, the only outstanding question has been whether his preexisting hypertension was aggravated by his second period of active duty service from August 2002 to June 2004. However, in a February 2009 rating decision, and during the course of this appeal, the Veteran has been granted service connection for diabetes mellitus, type 2. In a July 2013 appellate brief, the Veteran's representative has raised the argument that the Veteran's hypertension has also been aggravated by his now service-connected diabetes mellitus. Therefore, a VA opinion is necessary on this issue before this claim may be adjudicated. As for the claims for service connection for left knee and low back disorders, there is evidence of current disabilities of left knee sprain and strain in addition to a low back diagnosis of degenerative spondylosis and, together with the Veteran's complaints of continuing symptoms since service, the Board finds that this evidence provides a sufficient basis to afford the Veteran an examination and etiological opinion with respect to both of these claims. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a letter that fully complies with the notice requirements of 38 C.F.R. § 3.159, that informs him of the evidence necessary to support entitlement to service connection as secondary to another service-connected disability under 38 C.F.R. § 3.310. 2. Acquire any treatment records that may be available from the VA Central Alabama Health Care System for the period since April 2011. If the Veteran has undergone any relevant private treatment, and the records of such treatment have not been associated with the claims file, such records should also be acquired after obtaining his authorization. 3. Forward the claims file to a VA examiner for review in order to determine the nature, extent, onset and etiology of the Veteran's hypertension. Since the Veteran's hypertension was observed when he entered active duty in August 2002, the examiner should express opinions as to the following: a. Whether it is at least as likely as not (i.e., a 50% possibility or greater) that the Veteran's preexisting hypertension increased in severity during his active duty service from August 2002 to June 2005. If such an increase is shown, please discuss whether it may be established by clear and unmistakable evidence that such an increase was in the natural progression of the disorder. b. Whether it can be shown by clear it is at least as likely as not (i.e., a 50% possibility or greater) that the Veteran's preexisting hypertension has been aggravated due to another service-connected disorder (most notably, in this case, diabetes mellitus). All opinions must be accompanied by an adequate reasons and bases. Such reasons and bases may include, but is not limited to, the presence of symptomatology in service, specifically cited medical literature, and past evidence in the record, especially prior VA examination reports. The examiner must consider the Veteran's lay statements regarding this disorder. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A new examination is not necessary unless the assigned examiner determines that one is required. If an examination is deemed necessary, all indicated testing should be accomplished. 4. Also schedule the Veteran for another appropriate VA examination for his left knee and low back claims. The examiner should provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that any left knee sprain/strain, lumbar spine degenerative spondylosis, or other current left knee or low back disorder had its onset or is otherwise related to the Veteran's period of active service between August 2002 and June 2004. 5. After completion of the foregoing, readjudicate the issues on appeal. If the benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs