Citation Nr: 1333645 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 94-36 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left knee disorder and a right knee disorder. 2. Entitlement to service connection for a left shoulder disorder other than a sprain. 3. Entitlement to compensation for gynecomastia, to include residuals of a bilateral mastectomy, as secondary to medications associated with service-connected post-traumatic stress disorder (PTSD) or under 38 U.S.C.A. § 1151 as due to medication for nonservice-connected hypertension, or both 4. Entitlement to an effective date for service connection for lumbar degenerative disc disease (DDD) prior to July 21, 1993. REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney at Law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active military service from August 1979 to June 1983. This appeal initially came before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Paul, Minnesota and in St. Petersburg, Florida, to which jurisdiction of the Veteran's claims files was transferred. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file, a review of which does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. The procedural history of the case has previously been related in multiple Board decisions and, so, will be set forth only in a summarized form except for more recent developments. The Veteran is now service-connected for PTSD, rated 50 percent disabling; tinnitus, rated 10 percent disabling; degenerative joint disease (DJD) of the lumbar spine, rated 10 percent disabling; and noncompensable ratings are assigned for a scar of the lateral right thigh and for erectile dysfunction. The Veteran testified at two personal hearings at the RO, in January 1995 (at which he withdrew claims for increased ratings for tinnitus and for a right thigh scar, at page 2 of that transcript) which addressed claims for service connection for psychiatric disability and low back disability (both of which were subsequently granted); and as to his low back disability in September 1999. The Veteran was scheduled for a hearing before a Veterans Law Judge in Washington, D.C. in October 2003. However, in February 2004 he waived his right to a Board hearing. This case was previously before the Board in June 2001, November 2003, March 2007, and following an appeal of a 2007 Board decision to the United States Court of Appeals for Veterans Claims (Court), again in August 2010. In June 2001 the Board remanded the sole issue then before it of reopening of a claim for service connection for a low back disability for compliance with the recently enacted Veterans Claims Assistance Act of 2000 (VCAA). In November 2003 that issue, as well as reopening of claims for service connection for disorders of each knee, the left ankle, and left shoulder, and also service connection for disorders of the right thigh and right ankle were remanded because additional evidence had been submitted without waiver of initial RO consideration, and to obtain VA and private clinical records. Also, a statement of the case (SOC) was to be issued as to a claim for service connection for gynecomastia. Manlincon v. West, 12 Vet. App. 238 (1999). Historically, a May 2002 rating decision denied service connection for hypertension and compensation for gynecomastia as secondary to medication for service-connected PTSD. The February 2004 SOC addressed both issues but classified the gynecomastia claim as entitlement to compensation under 38 U.S.C.A. § 1151, and noted that the notice of disagreement (NOD) initiating the appeal was filed in October 2002. However, a review of that NOD reflects that the appeal was limited to the denial of compensation for gynecomastia, and not hypertension. After the 2004 SOC, the appeal was perfected by the VA Form 9 received later that month. Thus, the Veteran did not initiate an appeal from the May 2002 denial of service connection for hypertension. However, following the March 2007 Board remand of compensation for gynecomastia for an SOC, if one had not already been issued (and it had, as stated above), another SOC was issued in December 2009 but, as noted, the Veteran had already perfected his appeal as to this claim. Even if he had not, after the 2007 Board decision an SOC was issued in December 2009, and the appeal was perfected by filing VA Form 9 in January 2010. The Board in 2007 remanded the claim for service connection for a left shoulder disorder other than a sprain for a VA nexus examination. Claims for service connection for a right ankle disorder and for a right thigh disorder, other than a service-connected scar of the right thigh, and reopening of a claim for service connection for a left ankle disorder were denied. Applications to reopen claims for service connection for a low back disorder and disorders of each knee were granted but upon de novo consideration, without remanding to obtain VA nexus examinations, those claims were denied. The Veteran appealed that portion of the March 2007 Board decision which denied, upon de novo consideration, the claims for service connection for low back and bilateral knee disabilities. See page 8 of the Appellant's Court Brief and page 1 of Appellant's Reply Brief. In a November 2009 Memorandum decision the Court vacated that portion of the 2007 Board decision which denied service connection for those claims because it appeared that there was sufficient information to "indicate" that that those current disabilities could be related to military service which was a matter that the Board had not addressed. Upon remand, the Board was to either provide medical examinations or explain why such examinations were unnecessary. The Veteran did not appeal the March 2007 Board denials of service connection for a right ankle disorder or for a right thigh disorder, other than a service-connected scar of the right thigh or the denial of reopening of a claim for service connection for a left ankle disorder and, so, those matters are not now before the Board. In August 2010 the Board remanded the claims for service connection for disorders of the low back disorder and each knee for VA nexus examinations and the opportunity to provide non-VA or non-clinical records since 1983 as to complaints, treatment, time lost from work or employment modification due to back or knee disorders. In August 2010 the Board inadvertently failed to address the claim for service connection for a left shoulder disorder, other than a sprain (which was remanded by the Board in 2007). A June 2012 rating decision granted service connection for erectile dysfunction, secondary to service-connected PTSD. An initial noncompensable rating was assigned; however, compensation was awarded for special monthly compensation (SMC) under 38 U.S.C.A. § 1115(k); 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ, both from April 11, 2011 (date of claim). No aspect of these grants were appealed. The Veteran and his attorney were notified by RO letter of June 19, 2012, of a grant of service connection for lumbar degenerative disc disease (DDD) which was assigned an initial 10 percent rating effective July 21, 1993. The Veteran filed an NOD later that month as to the initial rating assigned (but not the effective date). In the Board's March 2013 remand, an SOC was to be issued as to this matter. Subsequently, the Veteran's attorney filed an NOD with the initial rating assigned and the effective date, which was received on June 10, 2013. An SOC was issued but only addressed the initial 10 percent rating assigned. However, no substantive appeal (VA Form 9, Appeal to the Board, or equivalent) has been filed. As noted in the SOC cover letter, the substantive appeal had to be filed within one year of the June 19, 2012, RO letter or within 60 days of the July 2013 SOC. Accordingly, an appeal has not been perfected as to the matter of an initial rating in excess of 10 percent for lumbar DDD. In this regard, 38 C.F.R. § 19.32 (2012) provides that an appeal may be closed without notice if there is not response to an SOC. Thus, the RO should close the appeal as to that matter pursuant to 38 C.F.R. § 19.32 (2012). Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (a timely substantive appeal is not jurisdictional and may be waived and stating that the RO "may make the initial determination as to the timeliness or adequacy of a Substantive Appeal..." and an adverse determination thereof is itself an appealable issue under 38 C.F.R. § 19.34). However, no SOC has been issued which addresses the effective date assigned for the grant of service connection for lumbar DDD, and that matter is addressed in the remand portion of this decision. The matter of entitlement to an effective date for service connection for lumbar DDD prior to July 21, 1993, and the claim for compensation for gynecomastia are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence indicates that the Veteran's current left knee disability, including arthritis and chondromalacia, is causally related to his military service. 2. The evidence indicates that the Veteran's current right knee disability, including arthritis and chondromalacia, is causally related to his military service. 3. The evidence indicates that the Veteran's current left shoulder disability, including arthritis, is causally related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability (diagnosed as arthritis and chondromalacia) have been met. 38 U.S.C.A. §§ 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for a right knee disability (diagnosed as arthritis and chondromalacia) have been met. 38 U.S.C.A. §§ 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for service connection for a left shoulder disability (diagnosed as arthritis) have been met. 38 U.S.C.A. §§ 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA imposes on VA a duty to assist in gathering information and evidence as well as an obligation to notify claimants what information or evidence is needed for claim substantiation prior to an initial unfavorable decision but, if not, any such error may be cured by providing notice followed by readjudication Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. However, in light of the favorable outcome of the claims for addressed on the merits, i.e., service connection for disabilities of each knee and the left shoulder, any VCAA deficiency is nonprejudicial and further discussion thereof is moot. Background On examination for service enlistment in May 1979 the Veteran weighed 171 lbs but was negative as to the knees and left shoulder. A February 8, 1983, clinical note indicates that the Veteran had been attacked about two weeks earlier by a couple of Germans and received some superficial wounds. Another clinical notation that same day reflects that he related having been stabbed in the back and leg. On examination he was 67 inches in height and weighed 185 lbs. A clinical note dated February 10, 1983, shows that he had been in a vehicular accident in 1981. On examination for service separation in June 1983 it was noted that he weighed 177 lbs. No pertinent abnormality was noted. In an adjunct medical history questionnaire he reported having or having had cramps in his knees when he bent them for a few minutes and then tried to stand up. In the Veteran's original claim for VA compensation in September 1983 he claimed, in part, service connection for both knees and painful joints, indicating that disability of the knees had begun in 1980. On VA examination in February 1984 [8 months after service discharge] the Veteran he weighed 214 lbs, and he was described as overweight. He related that he was in a field truck in Germany in 1981 that overturned, injuring his back. He had just been given some medication but no special treatment. He currently complained of arthralgias of both knees, especially when in a squatting position. When arising from that position he heard cracking sounds in his knees. Knee X-rays revealed no definite bony or joint abnormality. The pertinent diagnostic impression was multi-joint arthralgia, including the knees. In an October 1986 letter requesting upgrade of his military discharge the Veteran reported, in pertinent part, that he was on a five-ton truck in 1981 which overturned. He was given medication for his injuries and thereafter took a muscle relaxant from time to time during service. In November 1988 the Veteran submitted a copy of a Patient Data Card upon which it was certified that the Veteran had sought treatment. It was stated that he had sprained his left shoulder in 1983 and now desired to have two weeks off of work. In VA Form 21-4138 in November 1988 the Veteran reported having been treated for and diagnosed as having muscle spasms in left arm. In July 1988 he had been given a letter excusing him from work due to his left arm. In VA Form 21-4138 in April 1993 the Veteran claimed service connection for, in part, shoulder injuries. In VA Form 21-4138 in July 1993 the Veteran reported that he now recalled that the incident of a truck overturning during service occurred in 1980, and not 1981. In October 1993 he informed the RO that he had no means of contacting the persons he listed in his July 1993 letter as having knowledge of the truck having overturned. On VA general medical examination in March 1994 the Veteran reported that he had injured his left shoulder during service when he fell while playing baseball. He had seen a physician at that time and was given some medication but did not have X-rays and he was not given a sling; however, he had had left shoulder pain for several months which gradually improved. He now had occasional discomfort in that shoulder. His weight was currently 270 lbs. and weighed more now than during service but he was not certain who much he weighed during service. A left shoulder X-ray revealed degenerative changes of the inferior joint space with spurring off the glenoid and humeral head. The assessment, prior to X-rays, was a complaint of intermittent left shoulder pain, unremarkable on current X-ray. After the left shoulder X-rays, the assessment was degenerative joint disease (DJD). A March 6, 1996, right knee X-ray, taken because of an automobile accident the day before, was normal. Records of the Tallahassee Memorial Hospital show that in May 1998 the Veteran had left knee pain with no history of injury, and had similar right knee pain last month. A left knee X-ray found no fracture or dislocation but there was bony ossification in the soft tissue on the medial side, medial to the femoral condyle. At a September 1999 Decision Review Officer hearing at the RO the Veteran testified that he was treated for an injury of his low back in a truck accident in 1980. Page 2 of that transcript. He also testified that he injured his left shoulder during service while lifting ammunition and believed that he damaged some cartilage. Page 7. A September 2001 VAOPT note shows that the Veteran reported having injured his left shoulder during military service and requested X-rays. Private magnetic resonance imaging (MRI) at Horizon Orlando Clinic in January 2002 of the left knee disclosed a possible tear of the medial meniscus, joint effusion, tricompartmental osteoarthritis, and a popliteal cyst; and a right knee MRI disclosed a tear at the posterior horn of the medial meniscus, as well as degenerative changes at the femoropatellar joint. A private left shoulder MRI in January 2002 revealed mild hypertrophy of the acromioclavicular (AC) joint, and a possible posterior labral tear could not be excluded. An October 2002 VAOPT record noted that the Veteran had been in a vehicular accident last year, in about October, and he reported having injured his left shoulder during service. On examination he had some pain on left shoulder abduction. The pertinent impression was a left shoulder strain, by history. In December 2002 he reported having bilateral knee pain for a long time. He had had pain and stiffness in the right knee since earlier that month but denied any trauma. January 2003 VA X-rays of the Veteran's right knee revealed osteoarthritic changes in the right knee joint with narrowing of the patellofemoral articulation. A February 2003 report from the Henderson Chiropractic Clinic states that the Veteran was initially seen in March 2002 for treatment for injuries from an October 2011 accident when he was struck, twice, by an automobile. He was seen at the Orlando Regional Hospital and had X-rays and was given medication for pain. He reported having been in a truck accident in 1980 during military service, for which he had been treated but "with no apparent lasting injuries." He had been physically assaulted during his military service, in 1983 "but again had no permanent injuries." When initially seen in March 2002 his pertinent complaints were left shoulder pain, exacerbated by certain movements, and bilateral knee pain. He was treated through May 2002 and when seen again in December 2002 his pertinent complaints were of bilateral knee pain. It was felt that his injuries from the 2001 accident involved, in part, his left shoulder and both knees. An August 2003 VAOPT record reflects that he reported having pain and tightness in both knees since military service but the symptoms were worse since a postservice accident in October 2001. Right knee X-rays revealed medial compartment narrowing and marked narrowing of the patellofemoral joint. There were no left knee X-rays. The impression was degenerative joint disease (DJD) and chondromalacia of both knees. VAOPT records show that the Veteran was treated after twisting his right knee in January 2009 when stepping off a bus. On VA examination of the Veteran's left shoulder in July 2009 his claims files and medical records were reviewed. He related that due to an inservice fuel truck accident he was thrown about the cabin of the truck, injuring his back, left shoulder, and knees. The examiner noted that the STRs were sparse for that period of military service. The Veteran reported being seen in sickbay several times after the accident for pain in his back, left shoulder, and knees. He also reported having had a postservice left shoulder injury in about 2000 which acutely aggravated the left shoulder which had been painful, off and on, since the inservice accident and which had progressively worsened. The examiner was unable to locate a past left shoulder MRI in the claims files. It was noted that September 2006 left shoulder X-rays revealed degenerative changes. The diagnosis was left shoulder DJD that had its origin in a major truck roll-over accident in which the Veteran was a passenger. The examiner concluded that it appeared that the Veteran did injure his left shoulder during service in a truck roll-over accident which triggered a slowly progressive arthritic deterioration that was further hastened by the postservice accident in about 2000. Thus, it seemed as likely as not that this left shoulder DJD started inservice at the time of the roll-over accident. In April 2010 the Veteran reported having had multiple joint pains, mainly in the left knee and left shoulder, which had been chronic for 25 years. On VA examination in June 2011 of the Veteran's knees, the examining physician reviewed the claims files and reported that while recurrent back pain was documented in the STRS, no mention of a knee condition could be found. After an examination it was concluded that "[a]though it is possible that his knee condition is due to his military service, it would be mere speculation." In April 2012 another VA physician reported having reviewed the opinion of the June 2011 VA examiner. It was stated that the June 2011 VA examiner's opinion was that the Veteran's bilateral knee conditions were not due to military service. Contained in Virtual VA is a report of VA examination in April 2013 of the Veteran's knees which shows that the claim files were reviewed. It was noted that arthralgia of each knee had been diagnosed in 1982 or 1983. The Veteran reported that he had first claimed disability for his knees in the 1990s. During his military service he had engaged in long distance running and been exposed to extremes of weather. He had had to run extra distances, called remedial running, to keep pace with others. He reported that he now had bone on bone contact in his knees and used a cane in part because of his knees. He continued to have pain and swelling in his knees. He felt that his current knee symptoms were due to doing deep knee bends, running, and cold weather with no heat during military service. After a physical examination it was noted that the Veteran was morbidly obese, being at stage III. A review of past X-rays revealed that a March 6, 1996, right knee X-ray report had noted that he had been in an automobile accident the day before, but the X-ray revealed that knee was normal. An X-ray report in March 1999 noted that he complained of having had left knee pain for 3 months, and the impression had been that the left knee was normal. X-rays in 2001 revealed arthritis of the knees and patellofemoral compartment narrowing the left but not right knee. X-rays on December 20, 2002, noted that he had had pain and stiffness since the 18th of that month, and revealed osteoarthritis with narrowing of the patellofemoral articulation. X-rays in January 2009, taken because he had fallen, revealed degenerative changes. A right knee MRI in February 2009, taken after he had felt something pop in that knee, revealed chondromalacia. The examiner opined that the Veteran's bilateral knee DJD was not caused by or worsened from the military. The bilateral knee DJD was not related to any aspect of the Veteran's military service, including having its onset during service or being in any other way causally related to active service. The rationale was that he had a significant post military history, having fallen on his right knee twice, having been in an automobile accident, and having been morbidly obese for the last 18 years (documented since 1995). It was further opined that the Veteran's morbid obesity was the most likely the cause of his bilateral knee arthritis. Principles of Service Connection Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, not every manifestation of joint pain in service will permit service connection for arthritis first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). Arthritis will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after the period of service on which the claim is based. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." A showing of continuity of symptoms is not required when disease identity is established but is required when inservice chronicity is not adequately supported or when an inservice diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). If the preponderance supports the claim or the evidence is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102. Analysis Left and Right Knee Disorders It is unquestioned that X-rays have now revealed the presence of arthritis, i.e., DJD, in each knee. Thus, the Veteran now has a chronic disease, listed at 3.309(a), and if there is competent and credible evidence of inservice disability of the knees and of continuity of symptomatology, service connection is warranted for arthritis of the knees. See Walker, Id. Here, it is clear that the Veteran now has arthritis of both knees. As to continuity, of paramount significance is the finding that in 1984, only eight months after military service, that the Veteran had arthralgia of both knees. This was not specifically addressed by the VA examiner that rendered a negative medical opinion and is not otherwise addressed or explained by the examiner. There is also amply evidence that the Veteran has related having continuously had pathologic symptoms of his knees beginning at a point in time during military service. Accordingly, with the favorable resolution of doubt in favor of the Veteran, service connection for disabilities of each knee, including arthritis and adjunct chondromalacia, is warranted. Left Shoulder Disorder Other Than a Sprain Here, there is an unrefuted VA medical opinion which links the Veteran's current arthritis of the left shoulder to his military service. That opinion was rendered after an interview of the Veteran and a review of the claims files. That examiner accepted the Veteran's statements of having sustained a left shoulder injury during military service. The Board finds no reason to do otherwise. Accordingly, with the favorable resolution of doubt in favor of the Veteran, service connection for left shoulder disability, including arthritis, is granted. ORDER Service connection for a left knee disorder and a right knee disorder is granted. Service connection for a left shoulder disorder, classified as arthritis, is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Effective date for service connection for lumbar DDD As to the issue of an effective date for service connection for lumbar DDD prior to July 21, 1993, the July 2013 NOD filed by the Veteran's attorney initiated an appeal for effective date for service connection for lumbar DDD prior to July 21, 1993, but this matter was not addressed in an SOC. Thus, the Board's jurisdiction has been triggered and the Board must remand the claim to the RO for preparation of an SOC as to that claim. Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995) and Archbold v. Brown, 9 Vet. App. 124, 130 (1996); Manlincon v. West, 12 Vet. App. 238 (1999); see also 38 C.F.R. § 19.9 (2012). After issuance of an SOC, the appeal will be returned to the Board only if it is perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, supra.; see 38 C.F.R. §§ 20.200, 20.202 (2012). In this regard, the March 2007 Board decision stated, at page 15, that In a rating decision issued in May 1994, the RO determined that no new and material evidence had been submitted [to reopen a claim for service connection for a low back disorder]. The veteran disagreed with that determination ... and perfected an appeal of that decision [receipt of VA Form 9 in May 2005]. The 1994 rating decision is not yet final, so the last decision on the claim for service connection for a low back disorder is the May 1984 decision. In the Findings of Fact in the March 2007 Board decision it was stated that: A May 1984 rating decision which denied a claim of entitlement to service connection for a low back disorder, on the basis that the only low back disorder present, scoliosis, was a congenital defect for which service connection could not be granted, became final in May 1985, since no timely substantive appeal was received. In any event, the matter of entitlement to an effective date for service connection for a lumbar DDD is remanded to the RO for the issuance of an SOC addressing this matter. The Veteran and his attorney are hereby advised that after the issuance of an SOC on this matter, the appeal must be perfected by filing VA Form 9, Appeal to the Board, or its equivalent within the proper time frame, as will be explained in the SOC. Gynecomastia As to the claim for gynecomastia, the Veteran was provided VCAA notice by letter in December 2001 as to what was needed for claim substantiation based on service incurrence, as well as the respective evidence gathering duties. He replied in December 2001 that he had received all of his medical care for gynecomastia at VA facilities in Orlando and Tampa, Florida. He was informed of the laws and regulations governing claims under 38 U.S.C.A. § 1151 in the February 2004 SOC. On VA psychiatric examination in August 2000 it was noted that the Veteran was taking Trazodone, and he was taking "pills" for hypertension which had been diagnosed in 1996. VA outpatient treatment (VAOPT) records show that in April 2001 the Veteran was to continue taking Trazodone for psychiatric symptoms. In May 2001 he was taking Fosinopril for hypertension. An August 2001 bilateral mammogram revealed asymmetric breast tissue. The diagnosis was gynecomastia. In November 2001 it was reported that the Veteran had been instructed by a VA physician to stop taking Trazodone due to "s/e" [side-effect] gynecomastia. However, the medical personnel recording the note indicated that "I am unable to find literature associating gynecomastia w/ Trazodone." It was further noted that the Veteran was on "Fosinopril which can cause same, in addition to Vet's obesity." Later that month, he was concerned about his gynecomastia and wanted to know if he should stop taking Fosinopril. A nurse then discussed the matter with a Team Pharmacist who stated that there had been a few cases of gynecomastia with other drugs but "none with Fosinopril." The Veteran was advised to continue taking Fosinopril. A December 2011 VAOPT record indicates that the Veteran had been advised to stop taking Fosinopril "since it might cause gynecomastia." On VA examination in April 2002 the Veteran's claim file was available for review. In was indicated that VA clinical records had noted that a resident from the surgical team at a VA medical facility had entered a progress note stating that the Veteran should be taken off Trazodone because it might cause gynecomastia. Historically, it was noted that the Veteran had a history of gynecomastia which he claimed was secondary to Trazodone and his high blood pressure medication, specifically Fosinopril. He reported that he had noticed gynecomastia in 1991 or 1992 and had been on Trazodone for a few months before that. He was morbidly obese. On examination he had symmetrical gynecomastia, bilaterally. The diagnosis was bilateral gynecomastia. With respect to the question of what caused the gynecomastia, and if indeed it was the Trazodone, the examiner reviewed medical literature, including Harrison's Principles of Internal Medicine, 14th edition, and Trazodone was not on the list of medications that caused gynecomastia. A review of the "PDR [Physician's Desk Reference] and the information on Trazodone also failed to report gynecomastia as a side-effect. The examiner's opinion was that it was not likely that the Veteran's gynecomastia was secondary to Trazodone. The examiner was of the opinion that the Veteran's gynecomastia was secondary to morbid obesity which was a very common cause of adult male gynecomastia. However, the April 2002 VA examiner did not address whether Trazodone for service-connected PTSD aggravated the Veteran's gynecomastia and, also, did not address whether Fosinopril for nonservice-connected hypertension (and each has been prescribed by VA) either caused or aggravated the Veteran's gynecomastia. The Veteran's claim, VA Form 21-4138, Statement in Support of Claim, for compensation for gynecomastia was received in November 2001. This was after the 1997 amendment to 38 U.S.C. § 1151 instituting an element of VA fault as a requirement for compensation. For compensation under 38 U.S.C.A. § 1151 a claimant must show, in pertinent part: (1) a "qualifying additional disability, (2) actually caused by VA treatment, and (3) a proximate or direct cause that is either a fault on the part of VA or an event not reasonably foreseeable. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c)(1), (d)(1) (2012). Fault on the part of VA can be shown where VA furnished the care, treatment, or examination without a veteran's informed consent. 38 C.F.R. § 3.361(d)(1). See Revis v. Shinseki, No. 09-3437, slip op. at 7 (U.S. Vet.App. May 19, 2011). Here, the Veteran has set forth alternative arguments. First, that gynecomastia is due to medication (Trazodone) prescribed by VA for service-connected PTSD; second, that gynecomastia is due to medication (Fosinopril) prescribed by VA for nonservice-connected hypertension; and, thirdly, that gynecomastia is due to the combined effects of multiple medications, Trazodone and Fosinopril. As to the first, the standard of secondary service connection and secondary aggravation at 38 C.F.R. § 3.310(a) and (b) apply. As to the second, the legal standard under 38 U.S.C. § 1151 applies. However, as to the third theory, as described above, the legal requirements for substantiating a claim for either secondary service connection or secondary aggravation (when a service-connected disorder aggravates, without causing, additional disability) is lower than the standard for substantiating a claim under 38 U.S.C... § 1151. While both require evidence of causation, claims under 38 U.S.C. § 1151 further require that there be either VA fault or that VA treatment caused an event not reasonably foreseeable. Thus, in adjudicating the claim under the third theory, the Board will apply the standard which is more favorable to the Veteran which is that of secondary service connection and secondary aggravation under 38 C.F.R. § 3.310. In this regard, the VA opinion did not specifically address whether, even if gynecomastia was due to obesity, does Trazodone aggravate the gynecomastia? It also did not address whether the VA prescribed Fosinopril for nonservice-connected hypertension caused gynecomastia or, even if gynecomastia is due to nonservice-connected obesity, whether Fosinopril aggravated it. Also, if it is found that Fosinopril for nonservice-connected hypertension caused or aggravated gynecomastia, whether the development of gynecomastia was (1) given without the Veteran's informed consent; or, (2) whether the development of gynecomastia (caused or aggravated by Fosinopril) was a reasonably foreseeable event of taking Fosinopril. Also, in light of the foregoing, an opinion should be rendered as to the matters above, to include whether the combined effects of Trazodone for PTSD and Fosinopril for nonservice-connected hypertension either caused or (even if due to obesity) aggravated the claimed gynecomastia. Lastly, the Veteran has been provided VCAA notice as to the aspect of the claim for compensation under 38 U.S.C. § 1151. However, it does not appear that he has been provided appropriate VCAA notice with respect to the aspect of the claim concerning secondary service connection and secondary aggravation, under 38 C.F.R. § 3.310(a) and (b). So, on remand, the appropriate step(s) should be taken to ensure such appropriate VCAA notification. Accordingly, the case is REMANDED for the following action: 1. The RO should issue an SOC as to the issue of entitlement to an effective date for service connection for lumbar degenerative disc disease (DDD) prior to July 21, 1993. This SOC must be accompanied by VA Form 9, Appeal to the Board, which is a Substantive Appeal that must be properly executed and returned to the RO in a timely manner in order to perfect the appeal. Thereafter, if an appeal is perfected as to this matter, the case should be returned to the Board for appellate review. The Veteran and the Veteran's attorney must (and hereby are) apprised of the necessity of filing a timely substantive appeal in order to perfect the appeal and have this claim reviewed by the Board. Absent the filing of a substantive appeal the Board will be without jurisdiction to adjudicate the matter. 2. Ensure that the Veteran and his attorney are provided appropriate VCAA notification as to secondary service connection and secondary aggravation as to the claim for compensation for gynecomastia. 3. Return the case to the examiner that conducted the April 2002 VA examination for clarification. If that prior examiner is not available, arrange for the Veteran to be examined by other medical personnel. In either event, the claims files must be made available for review in order to render an adequate and informed opinion. Opinions should be rendered as to the following questions: (a). Is it as likely as not that the Veteran's document gynecomastia was caused by medication, Trazodone which was prescribed for service-connected PTSD? (b). Is it as likely as not that the Veteran's document gynecomastia was aggravated by medication, Trazodone which was prescribed for the service-connected PTSD? (c). Is it as likely as not that the Veteran's document gynecomastia was caused by the combined effects of medication, Trazodone which was prescribed for service-connected PTSD and medication, Fosinopril, for nonservice-connected hypertension? (d) Is it as likely as not that the Veteran's document gynecomastia was aggravated by the combined effects of medication, Trazodone which was prescribed for the service-connected PTSD, and medication, Fosinopril, which was prescribed for the for nonservice-connected hypertension? (e) Is it as likely as not that the Veteran's document gynecomastia was caused by the medication, Fosinopril, which was prescribed for the nonservice-connected hypertension? (f) Is it as likely as not that the Veteran's document gynecomastia was aggravated by medication, Fosinopril, which was prescribed for the nonservice-connected hypertension? (g) If the responses to either (e) or (f) above are in the positive, (1) was the Fosinopril given without the Veteran's informed consent; or, (2) was the development of gynecomastia (caused or aggravated by Fosinopril) a reasonably foreseeable event. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against a causal relationship. If an opinion cannot be expressed without a resort to speculation, the reason(s) for such should be explained. The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may result in the denial of the claim. 4. Then the claim for compensation for gynecomastia should be readjudicated. In the readjudication the RO should adjudicate, using the standards at 38 C.F.R. § 3.310(a) and (b) whether Trazodone either caused or aggravated gynecomastia; and adjudicate under 38 C.F.R. § 3.310(a) and (b), whether the combined effects of Trazodone (which was prescribed for the service-connected PTSD) and Fosinopril (which was prescribed for the nonservice-connected hypertension) either caused or aggravated gynecomastia. In the readjudication, the RO should use the standard under 38 U.S.C.A. § 1151 with respect to whether medication, Fosinopril, for nonservice-connected hypertension either caused or aggravated gynecomastia. Also, if it is found that medication, Fosinopril, for nonservice-connected hypertension either caused or aggravated gynecomastia, then adjudicate whether (a) Fosinopril given without the Veteran's informed consent; and, (2) the causation or aggravation of gynecomastia by Fosinopril was a reasonably foreseeable event. Adjudicate the claim of service connection for gynecomastia as either caused for aggravated by Trazodone for PTSD or by the combined affect of Trazodone (for PTSD) and Fosinopril (for nonservice-connected hypertension). 5. If the determination remains adverse to the Veteran, then he and his attorney should be furnished with a Supplemental Statement of the Case and should be afforded a reasonable period of time within which to respond thereto. 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs