Citation Nr: 1331807 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-21 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Whether there is new and material evidence to reopen a claim of entitlement to service connection for a right knee disorder and, if so, whether service connection is warranted. 2. Entitlement to service connection for a cervical spine disorder, including spondylosis with disc herniation at C5-6 and C6-7, as secondary to a low back disability (lumbar disc hernation at L5-S1 with free fragment). WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1993 to September 1997. An April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in part, denied his claim of entitlement to service connection for cervical spondylosis with disc herniation at C5-6 and C6-7. In denying the claim, the RO considered both direct and secondary service connection, that is, both the possibility this cervical spine disorder was directly related to or directly incurred during his military service and the alternative premise that it instead was secondary to his already service-connected low back disability, which, at the time, was characterized simply as a chronic low back strain. In that same decision, the RO increased the rating for the chronic low back strain from 10 to 40 percent retroactively effective as of January 9, 2007, the date of receipt of his claim for a higher rating for this service-connected disability. In May 2007, in response, so the following month, he submitted a Statement in Support of Claim (VA Form 21-4138) expressing his disagreement with the RO's conclusion that his cervical spine disorder was not secondary to his service-connected low back disability. He cited medical evidence in the file, especially a statement from his surgeon and a comment of a VA compensation examiner, supporting this notion of a secondary relationship between the cervical spine disorder and service-connected low back disability. The RO characterized that Statement in Support of Claim as a request for reconsideration of the decision denying this claim, hence, the subsequent October 2007 decision. But even after this additional review, the RO continued to deny this claim. The Veteran then appealed to the Board of Veterans' Appeals (Board/BVA). Also in that October 2007 rating decision, the RO recharacterized the Veteran's low back disability as lumbar disc hernation at L5-S1 with free fragment and granted a temporary 100 percent convalescent rating under the provisions of 38 C.F.R. § 4.30 ("Paragraph 30") effective October 23, 2007. The prior 40 percent rating for this low back disability resumed as of December 1, 2007. As well, the RO granted a separate 10 percent rating effective May 20, 2007, for associated lumbar radiculopathy (claimed as sciatica) of the left lower extremity The Veteran also appealed a more recent April 2008 RO rating decision that, in part, denied his additional claim of entitlement to service connection for bilateral (left and right) knee pain. That decision also confirmed and continued the 40 percent rating for his low back disability. An even more recent September 2012 RO rating decision, however, since has granted service connection for patellofermora syndrome of the left knee and assigned a 10 percent initial rating retroactively effective from January 9, 2008, on the premise that was date of receipt of this additional claim. And since he has not, in response, separately appealed either the initial rating or effective date assigned for this left knee disability, this claim, to the extent it concerns his left knee, is no longer at issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). So this claim now only concerns his right knee. But the Board also sees that he was originally denied service connection for a "sprain of the right knee with a possible torn meniscus" in a May 1999 rating decision. The primary reason for that earlier denial was that his service treatment records (STRs) did not contain evidence of any complaints, treatment, or diagnosis of a right knee disability. He did not appeal that prior decision, so it became a final and binding determination based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2013). He subsequently attempted to reopen this claim, but, in a June 2001 rating decision, the RO denied his petition because there was not new and material evidence since the prior final and binding decision denying this claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. He also did not appeal that decision, so it, too, became a final and binding determination based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2013). In January 2008, he filed the claim of entitlement to service connection for bilateral (left and right) knee pain - alleging it was secondary to his service-connected low back disability. And, as already discussed, the RO has since initially denied, but more recently granted, the claim as it relates to his left knee, while continuing to deny the claim as it instead concerns his right knee. But in considering the claim as it pertains to his right knee, the RO has erred in not first considering whether there is new and material evidence to reopen this claim, given that it twice has been previously considered, denied, and not timely appealed. Not only should the RO, but the Board has to make this threshold preliminary determination of whether there is new and material evidence to reopen this claim, before proceeding further, because this initial determination affects the Board's jurisdiction to adjudicate this claim on it underlying merits. The Board has a legal duty to address this question regardless of the RO's actions. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). If there is not this required new and material evidence to reopen this claim, what the RO determined is irrelevant since further analysis of this claim, beyond consideration of whether the evidence received is new and material, would neither be required nor permitted. Barnett at 1384 and Butler at 171. See also McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). See, too, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); VAOPGCPREC 05-92 (March 4, 1992). While the RO framed the issue differently, this time as a claim of entitlement to secondary service connection, this still only represents a new theory of entitlement to a benefit for a claim the Veteran previously had raised. A new theory of entitlement to a benefit does not constitute a new claim. See Bingham v. Nicholson, 18 Vet. App. 470 (2004), aff'd sub nom. Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (Fed. Cir. 2005). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that, for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), the "factual basis" of a service-connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). The lower U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has determined that the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, the Court stated that Boggs, as well as Ephraim, relies on a diagnosis to define the scope of a claim only retrospectively - after there has been a finding of fact based upon competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009). In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding Veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. However, the Court determined that the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits. Id. In determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim based upon distinctly diagnosed diseases or injuries or whether the evidence substantiates an element of a previously adjudicated matter. See Velez v. Shinseki, 23 Vet. App. 199 (2009). New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence. See Untalan v. Nicholson, 20 Vet. App. 467 (2006). But, conversely, a finding of new and material evidence since the prior final and binding determination would require reopening the claim and reconsidering it on its underlying merits, so on a de novo basis. 38 U.S.C.A. § 5108. Here, though, to reiterate, the Court has held that a separate theory of entitlement is not a new claim and must be addressed as part of the existing claim. See, e.g., Robinson v. Mansfield, 21 Vet. App. 545 (2008) (Separate theories in support of a claim for benefits for a particular disability or death do not equate to separate claims for that disability or death); Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (Although there may be multiple theories or means of establishing entitlement to a benefit for a disability or death, if the theories all relate or pertain to the same benefit for the same disability or death, they constitute the same claim). See also Ashford v. Brown, 10 Vet. App. 120 (1997) (holding that when a Veteran attempts to reopen a claim by bringing a new etiological theory for the causation of his disability than that which was previously addressed in the earlier final denial, such new theory of causation does not itself constitute a new claim, obviating the necessity of presenting new and material evidence for that same claim). Consequently, the Board is recharacterizing the appeal of this claim as first concerning a petition to reopen this claim. So the initial determination is not whether service connection is warranted for this alleged right knee disorder, rather, whether there is the required new and material evidence to reopen this claim. As explained, only if there is this necessary new and material evidence since the last final and binding denial of this claim do VA adjudicators then have to proceed to determining whether service connection is warranted. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (In determining whether there is new and material evidence to reopen the claim, VA adjudicators need only consider the evidence submitted or otherwise obtained since the most recent final and binding denial of the claim, so irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim). In support of the claims concerning his right knee and cervical spine, the Veteran testified at a hearing at the RO in June 2013 before the undersigned Veterans Law Judge (VLJ) of the Board. This type of hearing is often and more commonly referred to as a Travel Board Hearing. During the hearing, and in a letter he submitted right after it, the Veteran withdrew another claim that he also had appealed to the Board - for a higher rating for his low back disability. See 38 C.F.R. § 20.204. This perhaps was because in an intervening June 2012 rating decision the RO had increased the separate rating for the associated radiculopathy of his left lower extremity, now also with atrophy, from 10 to 60 percent retroactively effective as of March 9, 2012. The RO had concluded he had what amounted to severe incomplete paralysis of the sciatic nerve. Aside from that, service connection also has been granted and separate ratings assigned during the pendency of this appeal, in that same June 2012 decision as well as others in August 2010 and February 2009, for several additional disabilities, many as additionally secondary to the low back disability. So the only claims still at issue concern his right knee and cervical spine disorder. These two remaining claims require further development before being decided on appeal, however, so the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND As already explained, the RO initially considered and denied the Veteran's claim of entitlement to service connection for a right knee disorder in a May 1999 rating decision. A petition to reopen this claim subsequently was denied in June 2001. He was notified of that June 2001 decision and apprised of his procedural and appellate rights by way of a letter dated June 29, 2001. He did not appeal. Nor was new and material evidence received prior to expiration of the appeal period or service department records (STRs, etc.) not considered in that earlier decision that later came to light, which in turn would vitiate its finality (res judicata). 38 C.F.R. § 3.156(b) and (c). Therefore, that June 2001 rating decision is final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103. He since has filed a claim on a January 2008 VA Form 21-4138 for "bilateral knee pain" secondary to his service-connected low back disability. But for the reasons already discussed, it did not amount to a new claim - at least as specifically concerning his right knee in particular (although it did as pertaining instead to his left knee, for which service connection since has been granted). Thus, the RO should have undertaken a new-and-material-evidence analysis when considering his claim for right knee disability in the April 2008 rating decision, rather than immediately readjudicating this component of his claim on its underlying merits and denying service connection. A previously denied, unappealed claim may be reopened and reconsidered upon the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Evidence is new if it has not been previously submitted to agency decision makers. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117-121 (2010), the Veterans Court interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening," so a low threshold. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id., at 120. The Court explained that, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id., at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) does not require that a claimant submit a medical opinion to reopen a claim. Rather, if there is newly submitted evidence of current disability that in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. This then triggers VA's duty to assist in providing the claimant with a VA examination. Moreover, there is no requirement the evidence submitted be new, material, and raises a reasonable possibility of substantiating the claim, i.e., there are only two, not three, requirements for reopening a claim. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously denied claim, the credibility of the evidence is to be presumed - albeit only for making this threshold preliminary determination. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Madden v. Gober, 125 F.3d 1477, 1481 (1997); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990); and Kutscherousky v. West, 12 Vet. App. 369, 371 (1992) (per curium). But see, too, Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or to blindly accept allegations that are beyond a person's competence). As also already alluded to, the Board is required to review for newness and materiality only the evidence submitted or otherwise obtained since the last prior final and binding denial of the claim, irrespective of the specific basis of that denial, so regardless of whether it was on the underlying merits or, instead, a prior petition to reopen. See Evans v. Brown, 9 Vet. App. 273 (1996). While in certain instances the Board may determine, in the first instance, whether there is this required new and material evidence to reopen a previously denied, unappealed claim, the Board also must consider whether making this initial determination, rather than the RO, would be unduly prejudicial to the Veteran. Cf. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Here it would be because, if the Board does not reopen this claim concerning the right knee, it in effect would deprive the Veteran of one level of review ("bite at the apple", so to speak) in that the RO would have considered and denied his claim instead on its underlying merits, so on an entirely different basis. See Bernard v. Brown, 4 Vet. App. 384 (1993) (indicating the Board must consider this notion of prejudice if, in deciding a claim, it would require considering evidence or law the RO has not in its deliberations). Recognizing this, the Veteran would not have had opportunity to submit argument as to why there is new and material evidence to reopen this claim, only instead as to why service connection is warranted. The Board therefore is affording him and the RO this initial opportunity. With regards to the other claim on appeal, for service connection for a cervical spine disorder, at the conclusion of a January 2007 VA Compensation and Pension Examination the examiner commented in his diagnosis that the "chronic low back condition decrease active range of motion of (sic) due to recent cervical spine fusion" So there was at least suggestion of correlation between the service-connected low back disability, specifically, the worsening of it, and the cervical spine disorder also being claimed. But, significantly, according to 38 C.F.R. § 3.310(a) and (b), secondary service connection is only permissible when the service-connected disability (which, here, is the low back disability) causes or aggravates the nonservice-connected condition being claimed (which, here, is the cervical spine disorder), not the opposite or vice versa, which instead is what that VA compensation examiner seemed to indicate. And, indeed, this apparently is why the RO subsequently discredited this alleged secondary relationship between these conditions when denying the claim for a cervical spine disorder in April and October 2007, even despite the Veteran's intervening May 2007 Statement in Support of Claim (on VA Form 21-4138) citing that VA compensation examiner's comment in his diagnosis and the belief of the Veteran's surgeon that it is "conceivable" the two injuries are related. Regarding the letter from the Veteran's surgeon positing that it is "conceivable" the two injuries are related, this is an insufficient basis to grant service connection for the cervical spine disorder as secondary to the service-connected low back disability. Statements like this that are inconclusive as to the origin of a disorder generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service - including, here, by way of a service-connected disability. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). However, by the same token, these types of opinions also cannot be used to rule out this purported correlation, either. Ultimately, noncommittal opinions like this amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). Indeed, in past decisions the Court also had held that saying a condition "may" be related to the Veteran's military service (including, here, secondarily by way of a service-connected disability) is tantamount to saying it just as well "may not" be, so, because of this equivocality, also an insufficient basis to grant service connection. See Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett v. West, 11 Vet. App. 420 (1998). The same is true when the posited correlation is expressed in similar terms of "possibly" related or "could be" related because this also implies "possibly not" and just as well "could not be" related. An etiological opinion, however, has to be viewed in its entire context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). Moreover, additional precedent cases have been more recently issued shedding further light on how to properly assess and determine the probative value of these noncommittal opinions. Notably for instance, in Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008), the Federal Circuit Court indicated a determination regarding service connection requires consideration of all pertinent medical and lay evidence, including medical opinions that do not state definitively when a particular disorder or condition began; therefore, classifying a medical opinion as "non-evidence" is "troubling." Similarly, in Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009), the Federal Circuit Court more recently held that an examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection; therefore, it is not pertinent evidence regarding service connection. The remainder of the report, however, must be considered as evidence of whether the disability was incurred in service (or, here, is secondary to, i.e., caused or aggravated by, a service-connected disability). An even more recent precedent case also admonished the Board for relying on medical opinions that also were unable to establish this required linkage, without resorting to mere speculation, as cause for denying the Veteran's claims. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. And this remained unclear in this particular instance. The Veteran resultantly was provided another VA Compensation and Pension examination in April 2012 for a supplemental medical nexus opinion regarding the etiology of his cervical spine disorder - especially insofar as its alleged relationship with his military service, including particularly secondarily by way of his service-connected low back disability. The question posed was "[i]s the Veteran's cervical spine condition related to his lumbar spine condition?" Despite framing the issue this way, the examiner checked a box in the "Medical opinion for direct service connection" section, opining that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner did not fill out the "Medical opinion for secondary service connection" section. The examiner did however provide rationale that touched on the secondary service connection claim, but simply stating "[the Veteran's] cervical spine condition is a separate condition from his lumbar condition." But two opinions are required for secondary service connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). Once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to, it 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). Additionally, a medical opinion must be supported and explained. In fact, most of the probative value of an opinion comes from its underlying reasoning, not just from review of the claims file, although that, too, has significance if it would reveal facts or evidence that might affect the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). See also Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated, and "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.") The Veteran explicitly raised the issue of secondary service connection for his cervical spine disorder in his original May 2007 claim for this additional disability. And in his testimony during his more recent June 2013 Travel Board hearing, he made clear that he is alleging entitlement to service connection for this additional disability on all possible bases - direct, presumptive and secondary. In adjudicating this claim the Board must consider all potential bases of entitlement. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the Court (CAVC) has jurisdiction by virtue of a Notice of Disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof). This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. As already explained, the analysis for secondary service connection is two-pronged. First, there must be a determination of whether the additionally claimed disability is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Second, there must be a determination of whether a service-connected disability is aggravating (meaning chronically or permanently worsening) the non-service-connected condition being claimed. 38 C.F.R. § 3.310(b). In order for a VA medical opinion to be adequate regarding secondary service connection, the examiner must address both causation and aggravation. So, here, as the April 2012 VA examiner did not provide adequate reasons and bases for his conclusions and did not address this additional issue of aggravation, the claim for a cervical spine disorder must be remanded for an addendum opinion. Accordingly, these claims for right knee and cervical spine disorders are REMANDED for the following additional development and consideration: 1. Provide the Veteran appropriate Veterans Claims Assistance Act (VCAA) notice regarding his petition to reopen his claim for service connection for a right knee disorder. In particular, the letter must define what "new and material evidence" means. There also must be specification of the bases of the denial of this claim in the last final and binding decision (which was in June 2001) and description of what evidence would be necessary to substantiate the element or elements required to establish entitlement to service connection that were found insufficient in that previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial. VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006). 2. Forward the Veteran's claims file to the VA examiner that performed the April 2012 compensation examination on the Veteran's cervical spine for an addendum opinion. Following review of the claims file, including the Veteran's STRs and statements in support of his claim, his post-service VA and private medical treatment records, and the VA examination reports of record, the examiner should address the following: The likelihood (very likely, as likely as not, or unlikely) the Veteran's current cervical spine disorder, including spondylosis with disc herniation at C5-6 and C6-7, (i) originated or incepted during his active military service from September 1993 to September 1997, or, (ii) if involving arthritis, within one year of his discharge from service, so meaning by September 1998, or (iii) is otherwise related or attributable to his service - including secondarily if caused or aggravated by his service-connected low back disability (lumbar disc hernation at L5-S1 with free fragment). *Regarding the latter, even if, as previously indicated, the cervical spine disorder is a "separate" condition from the service-connected low back disability, there still needs to be comment on whether the service-connected low back disability caused or is aggravating the cervical spine disorder. If there has been aggravation, the examiner should also if possible attempt to establish the baseline of disability affecting the cervical spine before the aggravation, since the Veteran is only compensated for the additional disability over and beyond that on account of the aggravation. If, on the other hand, it simply is not possible or feasible to make this distinction between the levels of disability preceding versus since the aggravation, then expressly indicate this but, as importantly, discuss why this assessment cannot be made with any degree of reasonable medical certainty. Also consider that the term "as likely as not" means at least 50-percent probability. It does not however mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or aggravation as it is to find against it. The examiner must provide a clear rationale and bases for all opinions expressed, if necessary citing to specific evidence in the file. The examiner should also note in his or her opinion that a review of the claims file was done, and must discuss pertinent evidence in the claims file. Specifically, consideration must be given to the Veteran's noted scoliosis during his enlistment examination, his treatment in service for his low back (lumbar rather than cervical segment of his spine), his post-service VA and private treatment records, and the opinion from his private surgeon stating "it is conceivable that [the Veteran's] cervical spine discectomy and fusion are a result of his current low back condition." If it is the opinion of the VA examiner that the Veteran's cervical spine disorder instead is the result of other factors unrelated to his military service, such as simple aging, post-service circumstances, or any other process not related to his time in service or his service-connected low back disability, there must be discussion of why there is this disassociation. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must nonetheless provide 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 or needs the benefit of additional evidence of information, etc. If it is not possible or feasible to have this same VA examiner comment further, then have someone else equally qualified provide this necessary additional comment, which in this eventuality may require having the Veteran reexamined, but this is left to the designee's discretion. 3. Then, based on this and all other additional evidence, adjudicate the Veteran's petition to reopen his claim for service connection for a right knee disorder. So first consider whether there is the required new and material evidence to reopen this claim since the prior June 2001 RO decision last considering and denying the petition to reopen this claim. In this determination, consider all potential bases of entitlement - so direct, presumptive and secondary service connection - but regarding the latter not as an entirely new claim, rather, a newly-alleged basis of entitlement, so still in effect the same claim as previously considered, denied, and not timely appealed. The newly-alleged basis of entitlement, which, again, does not amount to a new claim, is that the right knee disorder is secondary to (meaning caused or aggravated by) the service-connected low back disability. But, again, as the Veteran alleged during his rather recent June 2013 Travel Board hearing, he is claiming entitlement to service connection on direct, presumptive and secondary bases, so all must be considered, both in determining whether there is the required new and material evidence to reopen this claim and, if there is, when readjudicating this claim on its underlying merits. Also readjudicate his claim of entitlement to service connection for a cervical spine disorder secondary to the service-connected low back disability, also in light of this and all other additional evidence. If the claims are not granted to the Veteran's satisfaction, send him another SSOC and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. He has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).