Citation Nr: 1332530 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-43 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been presented sufficient to reopen the claim for entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected traumatic brain injury (TBI), (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect). 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected TBI, (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect). 3. Entitlement to service connection for deep vein thrombosis, to include as secondary to service-connected TBI, (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect). 4. Entitlement to service connection for hypogonadism, claimed as pituitary gland dysfunction, to include as secondary to service-connected TBI, (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect). 5. Entitlement to service connection for diabetes mellitus, type 2, to include as secondary to service-connected TBI, (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect). 6. Entitlement to service connection for bronchospasms, claimed as pulmonary embolus, to include as secondary to service-connected TBI, (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect). 7. Entitlement to service connection for Grave's disease, claimed as thyroid and/or endocrine dysfunction, to include as secondary to service-connected TBI, (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect). 8. Entitlement to a disability rating in excess of 10 percent for post concussion syndrome with headaches, history of dizziness and cognitive defect. 9. Entitlement to a temporary 100 percent disability rating for hospitalization and convalescence due to deep vein thrombosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active military service from December 1983 to August 1991. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. In a May 2001 rating decision, the RO continued a 10 percent disability rating for the Veteran's service-connected post concussion syndrome with headaches, history of dizziness, cognitive defect, and denied entitlement to service connection for obstructive sleep apnea, as secondary to his post concussion syndrome. The Veteran filed a statement in April 2002, expressing his dissatisfaction with his 10 percent disability rating for post concussion syndrome. The Board finds that this statement meets the criteria for a notice of disagreement (NOD) with regard to his disability rating for post concussion syndrome. 38 C.F.R. § 20.201 (2012). As such, the May 2001 rating decision did not become final, and the current claim is on appeal from this rating decision. See 38 U.S.C.A. § 7105(c) (West 2002). The Board notes that the Veteran did not file an NOD in response to the RO's May 2001 decision to deny entitlement to service connection for obstructive sleep apnea. As such, with regard to that issue, the May 2001 rating decision became final. In an October 2011 rating decision, the RO denied entitlement to service connection for hypogonadism, claimed as a pituitary dysfunction, for diabetes mellitus, type 2, for amputation of the second, third and fourth digits of the left hand, for bronchospasms, claimed as pulmonary embolus, and for deep vein thrombosis. In addition, the RO continued the denial of entitlement to service connection for Grave's disease, claimed as a thyroid/endocrine disorder), and for obstructive sleep apnea, both as secondary to his service-connected post concussion syndrome with headaches, history of dizziness and cognitive defects. Finally, the RO denied entitlement to a temporary 100 percent disability rating for hospitalization and convalescence due to deep vein thrombosis. The Veteran presented testimony before the undersigned Veterans Law Judge in June 2013 via videoconference; a transcript has been associated with the record. At his hearing and in various statements, the Veteran has claimed that there is clear and unmistakable error (CUE) in the handling of his claim for an increased disability rating for his service-connected post concussion syndrome. It appears his central claim is that he was not provided with an examination specific to a traumatic brain injury (TBI) in 1999. The Board notes here that, according to the United States Court of Appeals for Veterans Claims (Court), CUE is a very specific and rare kind of error-one that, when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell at 313). Here, the Veteran has not identified a specific RO decision in his claim of CUE. Id., Mindenhall v. Brown, 7 Vet. App. 271, 275 (1994) (where there are multiple decisions, a failure to specify the dates of the RO (or Board) decision being collaterally attacked, renders the pleading of CUE insufficient). In addition, inasmuch as his claim relies on the premise that he was not provided with the proper VA examination for a TBI disability in 1999, the Board notes that regulations regarding claims for TBI were not in place until October 2008. A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. May v. Nicholson, 19 Vet. App. 310, 313 (2005). The laws at the time of the RO or Board decision being attacked should be used. See, e.g., Fournier v. Shinseki, 23 Vet. App. 480 (2010) (finding that it was not CUE to determine that a claim was not pending when the regulations pertaining to notice and denial at the time of such notice were followed). Finally, the Board notes that the Court has held that the failure to fulfill the duty to assist does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). However, to the extent that the Veteran's wished to pursue a claimd for CUE in an RO decision, the claim is referred to the RO. The RO has not adjudicated this issue in the first instance, therefore the Board does not have jurisdiction over it. The issue of whether there was CUE in the RO's rating decision dated August 14, 1999 is REFERRED back to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (The Board does not have jurisdiction over issues not yet adjudicated by the RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for obstructive sleep apnea and for deep vein thrombosis, both to include as secondary to service-connected TBI, (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect), entitlement to a disability rating in excess of 10 percent for post concussion syndrome with headaches, history of dizziness and cognitive defect, and entitlement to a temporary 100 percent disability rating for hospitalization and convalescence due to deep vein thrombosis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At his videoconference hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw the appeal of his claims for entitlement to service connection for hypogonadism, claimed as pituitary gland dysfunction, for diabetes mellitus, type 2, for bronchospasms, claimed as pulmonary embolus, and for Grave's disease, claimed as thyroid and/or endocrine dysfunction, to include as secondary to service-connected TBI (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect). 2. The RO denied the Veteran's original claim of service connection for obstructive sleep apnea, as secondary to his service-connected post concussion syndrome, in a May 2001 rating decision; the Veteran did not file a timely appeal and no new and material evidence was received during the applicable appeal period. 3. Since the May 2001 rating decision, evidence has been received that is neither cumulative nor redundant of evidence of record at the time of the prior denial, that relates to unestablished facts necessary to substantiate the claim, and that raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim for service connection for hypogonadism, claimed as pituitary gland dysfunction, to include as secondary to service-connected TBI, (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect), by the appellant, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for withdrawal of the appeal of the claim for service connection for diabetes mellitus, type 2, to include as secondary to service-connected TBI, (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect), by the appellant, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. The criteria for withdrawal of the appeal of the claim for service connection for bronchospasms, claimed as pulmonary embolus, to include as secondary to service-connected TBI, (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect), by the appellant, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 4. The criteria for withdrawal of the appeal of the claim for service connection for Grave's disease, claimed as thyroid and/or endocrine dysfunction, to include as secondary to service-connected TBI, (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect), by the appellant, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 5. The May 2001 rating decision denying service connection for an obstructive sleep apnea is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 6. Because evidence received since May 2001 is new and material, the claim of service connection for obstructive sleep apnea is reopened. 38 U.S.C.A. § 5103, 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. § 3.102, 3.159, 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Withdrawal of claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn the appeal of his claims for entitlement to service connection for hypogonadism, claimed as pituitary gland dysfunction, for diabetes mellitus, type 2, for bronchospasms, claimed as pulmonary embolus, and for Grave's disease, claimed as thyroid and/or endocrine dysfunction, to include as secondary to service-connected TBI, (formerly post concussion syndrome with headaches, history of dizziness and cognitive defect) and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to these claims. Accordingly, the Board does not have jurisdiction to review the appeal of these issues, and they are dismissed. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance 'if no reasonable possibility exists that such assistance would aid in substantiating the claim'); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's decision, which constitutes a full grant of the benefit sought on appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. Claim to reopen In order to reopen and review a claim that has been previously denied, new and material evidence must be submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). "[T]he question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied." Kent v. Nicholson, 20 Vet. App. 1, 10 (2006); see Bostain v. West, 11 Vet .App. 124, 127 (1998) (noting that the "last final disallowance" of a claim was the denial of a request to reopen). The provisions of 38 C.F.R. § 3.156(a) define new evidence as evidence not previously submitted to agency decision makers and material evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). "[T]he phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence." Rather, it is simply "a component of the question of what is new and material evidence," and should be informed by the question of whether the "evidence could, if the claim were reopened, reasonably result in substantiation of the claim." Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). New and material evidence is not required "as to each previously unproven element of a claim." Id. at 120. Thus, the question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. If the McLendon standard is met, the claim should be reopened. See id. Moreover, all evidence received subsequent to a final decision is considered credible for the purposes of reopening a claim. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The RO denied the claim in May 2001 based on a VA examination provided to the Veteran in March 2000. At that time, the VA examiner noted that the Veteran had obstructive sleep apnea, but that he was obese and that his obstructive sleep apnea was not due to his neurological problems. New and material evidence addressing this basis for denial is required to reopen the claim. See 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110. Since May 2001, substantial pertinent evidence has been added to the claims file, as follows. The Veteran was provided with another VA examination in November 2010. This VA examiner opined that the Veteran's obstructive sleep apnea was a result of obesity, which was in turn a result of inactivity caused by his TBI. The Board finds that this evidence is new because it was not before the adjudicator in May 2001. The Board also finds that the new evidence is material because it directly addresses the reason the claim was previously denied on the last adjudication in May 2001. This evidence is consistent with the criteria of 38 C.F.R. § 3.159(c)(4)(iii), and McLendon, 20 Vet. App. 79, for determining whether a VA examination is necessary. See Shade, 24 Vet. App. 110. The Board accordingly finds that new and material evidence has been received to reopen the claims of service connection for obstructive sleep apnea. Hence, the appeal to this extent is allowed. ORDER As new and material evidence has been received to reopen the claim of service connection for obstructive sleep apnea, the appeal to this extent is allowed. REMAND Increased rating - TBI The Veteran has contended that his service-connected TBI warrants a higher disability rating. Specifically, he has asserted that he has additional disabilities that are due to his service-connected TBI, including cognitive deficits that have caused him to lose his employment. See Veteran statement dated in August 2011. The Veteran was provided with a VA examination in May 2010. The examiner noted at that time that the effects of the Veteran's TBI were "progressively worse." In light of this finding, and the amount of time that has passed since this examination, the Board finds that the Veteran should be provided with another TBI examination, to determine the current nature and severity of his TBI and related residuals, to include cognitive impairment. Service connection - obstructive sleep apnea The Veteran has claimed that his TBI caused inactivity, and that his inactivity lead to obesity, which caused his obstructive sleep apnea. A November 2010 VA examination report shows that the examiner diagnosed obstructive sleep apnea, and opined that it was due to weight gain caused by inactivity, in turn caused by TBI. The examiner noted that he provided this opinion based on review of the claims file, the Veteran's online VA medical records, physical examination and clinical experience. An April 2011 examination report, completed by the same VA examiner who provided the November 2010 VA examination, reflects the fact that he reexamined the Veteran's claims files, and that there was no change in his opinions from the November 2010 examination. A VA examiner, who reviewed the Veteran's claims file and medical literature relating to the Veteran's issues, provided an additional opinion in August 2012. This examiner opined that it was less likely as not that the Veteran's obstructive sleep apnea was caused by or a result of his service-connected TBI. The examiner provided the rationale that obstructive sleep apnea is a disorder that is characterized by obstructive apneas, and hypnoapneas caused by the repetitive collapse of the upper airway during sleep. He noted that risk factors included obesity, but that while obesity was a risk factor, it was not a cause of sleep apnea. Additionally, the Veteran's age is also a risk factor and may have played a role in the development of his sleep apnea. Service connection can be provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation. 38 C.F.R. § 3.310(b). The VA examiner did not provide an opinion as to whether the Veteran's obesity due to his TBI has aggravated his obstructive sleep apnea. On remand, an opinion should be obtained with regard to aggravation of the Veteran's obstructive sleep apnea. Service connection - deep vein thrombosis The Veteran has claimed that his deep vein thrombosis, which led to pulmonary embolus, was caused by inactivity due to his TBI. The record reflects that the Veteran was diagnosed with his first deep vein thrombosis in 2003. He had an inferior vena cava filter placed due to bilateral, recurrent deep vein thrombosis in September 2007. In February 2008, it was determined that two of the twelve legs of the filter had broken off, which has required further treatment and surgery. See VA examination report dated November 18, 2010. An October 2009 letter from Misha Denham, D.O., P.A., reflects his notation that the Veteran developed deep vein thrombosis following his abrupt decline in activity following his TBI, due to excessive sleepiness and his rarely leaving his bed. This private physician noted that risk factors for deep vein thrombosis include stasis and immobility which is why this is seen frequently bedridden patients. The Veteran then had prolonged flight times associated with his federal employment. A September 2010 VA examination report reflects the examiner's opinion that the Veteran's current deep vein thrombosis was not caused by or aggravated by his post concussion syndrome. He provided the rational that deep vein thrombosis was caused by alterations in blood flow, such as stasis or vascular endothelia injuries such as plaque formation, or alteration in the consistency of the blood such as inherited or acquired hypercoagulable state. The examiner found that the Veteran's post concussion syndrome did not cause any of these risk factors, and that there was no medical literature that substantiated or supported the Veteran's contentions that his deep vein thrombosis was caused by his post concussion syndrome. In addition, the examiner opined that his amitriptylin had no risk factors for deep vein thrombosis. A November 2010 VA examination report shows that the examiner opined that the Veteran's deep vein thrombosis was due to inactivity caused by TBI. The examiner noted that he provided this opinion based on review of the claims file, especially the letter dictated by Misha Denham, the Veteran's online VA medical records, physical examination and clinical experience. An April 2011 opinion, completed by the same VA examiner who provided the November 2010 VA examination, reflects the fact that he reexamined the Veteran's claims files, and that there was no change in his opinions from the November 2010 examination. In August 2012, a VA examiner who reviewed the claims file found that it was less likely as not that the Veteran's pulmonary embolus was caused by or as a result of his deep vein thrombosis caused by inactivity due to TBI. The examiner noted that the notes did not portray the Veteran as being immobilized and in fact do show that he had been working as an FAA inspector (with frequent air travel). At the time of his employment, he sustained recurrent pulmonary emboli and deep vein thrombosis. The examiner opined that inactivity was not a factor for the development of deep vein thrombosis. Additionally, it was not inactivity per se that resulted in deep vein thrombosis, but rather alterations in blood flow, vascular endothelial injury, or alterations in the constituents of the blood. In view of the Veteran's recurrences, it was most likely that he had some form of hypercoagulable state that resulted in his recurrences that does not arise from TBI. TBI is not known to be a risk factor or causation for deep vein thrombosis or pulmonary emboli according to the medical literature. The Board notes that an opinion has not been obtained with regard to whether the Veteran's obesity, caused by his inactivity, has aggravated his deep vein thrombosis. As such, on remand, an opinion should be obtained regarding aggravation of the Veteran's deep vein thrombosis by his service-connected TBI. The Veteran's claim for temporary 100 percent disability rating for hospitalization and convalescence due to deep vein thrombosis is inextricably intertwined with the issue of entitlement to service connection for deep vein thrombosis. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Holland v. Brown, 6 Vet. App. 443, 446 (1994). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current level of impairment due to the service-connected residuals of post concussion syndrome with headaches, history of dizziness and cognitive defect, as well as any other residuals of the traumatic brain injury. In evaluating the Veteran, the examiner should consider the three main areas of dysfunction listed in the revised rating criteria (see 38 C.F.R. § 4.124a (effective October 23, 2008)) that may have resulted from the Veteran's traumatic brain injury: cognitive, emotional/behavioral, and physical. If deemed necessary, additional evaluation in one or more of these areas of dysfunction should be obtained in order that there may be a complete picture of the Veteran's residuals of a traumatic brain injury including abnormal gait, tinnitus, intermitted dizziness, other neurological difficulties. The examiner must address all potential facets of traumatic brain injury, including: memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; and neurobehavioral, cognitive, communication, consciousness, psychiatric, or mental effects; and any pain-related conditions. For each of these, the examiner must address whether a disability or impairment in functioning is present, and if so whether it is at least as likely as not that this facet of traumatic brain injury is causally associated with the Veteran's head injury in service. The examiner must also assess the Veteran's physical impairments related to his traumatic brain injury, to include motor and sensory dysfunction, including pain of the extremities and face, visual impairment, hearing loss and tinnitus, loss of sense of smell and taste, seizures, gait, coordination, and balance problems, speech and other communication difficulties, neurogenic bladder, neurogenic bowel, cranial nerve dysfunctions, autonomic nerve dysfunctions, and endocrine dysfunctions. Upon completing the above examination, the examiner must consider the current severity of each of the Veteran's disabilities found to be related to traumatic brain injury. All symptoms related to each problem should be described in detail. Report of the examination must include discussion of the Veteran's documented medical history and assertions. A complete copy of this remand and the claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. A complete rationale for any opinion expressed must be included in the examination reports. 2. The Veteran's claims file should be provided to a VA examiner to review the record and provide an opinion as to the etiology of his current obstructive sleep apnea. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current obstructive sleep apnea has been aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected TBI, including by obesity caused by inactivity due to TBI. If the Veteran's current obstructive sleep apnea was aggravated by his service-connected TBI (or related obesity), the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 3. The Veteran's claims file should be provided to a VA examiner to review the record and provide an opinion as to the etiology of his current deep vein thrombosis. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current deep vein thrombosis has been aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected TBI, including by obesity caused by inactivity due to TBI? If the Veteran's current deep vein thrombosis was aggravated by his service-connected TBI (or related obesity), the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 4. Readjudicate the Veteran's claims, including entitlement to a temporary 100 percent disability rating for hospitalization and convalescence due to deep vein thrombosis. If any determination remains unfavorable to the Veteran, the Veteran and his representative should be provided with a supplemental statement of the case. The appellant should be afforded an opportunity to respond before the case is returned to the Board for further review. 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). ______________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs