Citation Nr: 1336381	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  07-34 469	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for asthma.

2.  Entitlement to service connection for sinusitis.

3.  Entitlement to service connection for allergic rhinitis.

4.  Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (claimed as adjustment disorder).

5.  Entitlement to service connection for anemia.

6.  Entitlement to service connection for pes planus.

7.  Entitlement to service connection for narcolepsy.  




REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

K. Fitch, Counsel


INTRODUCTION

The Veteran served on active duty from June 1985 to May 1995.  She also had a prior period of active duty for training (ACDUTRA) from April 1984 to September 1984.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which granted entitlement to service connection for total vaginal hysterectomy, and special monthly compensation based on loss of use of a creative organ, and denied the remaining 13 service connection claims.  The Veteran filed a notice of disagreement dated in June 2007 and the RO issued a statement of the case dated in September 2007.  The Veteran submitted her substantive appeal in October 2007.  The RO in Waco, Texas, has original jurisdiction over this case.

In February 2010, the Board denied a higher evaluation for service-connected total hysterectomy and denied service connection or positive tuberculosis (TB) test and remanded the remaining claims for further development. 

In February 2013, the Board denied service connection for post-traumatic stress disorder (PTSD), urinary tract infection, bilateral shin splints, a bilateral knee condition, to include tendonitis, and a back disorder, to include back strain.  The remaining issues were remanded for further development.  

Here, the Board notes that the Veteran has claimed entitlement to service connection for a psychiatric disability.  In this regard, the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  As such, the Board has characterized the issue as shown above.

The Board also notes that, in addition to the claims file, the Veteran has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process.  The Board has reviewed the contents of the paperless file as well as the Veteran's physical claims file and will proceed with review of the claims based upon all relevant evidence.  

The issues of entitlement to service connection for asthma, sinusitis, allergic rhinitis, an acquired psychiatric disorder, and narcolepsy 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.  The medical records do not indicate that the Veteran has a current disability of anemia during the pendency of her claim.   

2.  Pes planus clearly and unmistakably existed prior to active military service and was clearly and unmistakably not aggravated beyond its natural progression by the Veteran's active military service. 






CONCLUSIONS OF LAW

1.  The criteria for an award of service connection for anemia have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2013).

2.  The criteria for an award of service connection for pes planus have not been met.  38 U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.304, 3.306 (2013); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VCAA

VA will make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA.  VA will also assist a claimant in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

Letters dated in April 2006 and April 2010 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The letters notified the Veteran of the evidence and information necessary to substantiate the claims and informed the Veteran of her and VA's respective responsibilities in obtaining that evidence.  The Veteran was also informed of the process by which initial disability ratings and effective dates are assigned.

In addition to the foregoing, the Board observes that the Veteran's available service personnel and service treatment records, and post-service medical treatment records have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran has also been provided with VA examinations in connection with her claims.  As more fully described below, the Board finds that the examinations pertaining to the claims adjudicated herein are adequate for deciding the claims.  There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file.  

It is noted that the service treatment records (STRs) are incomplete and any such records that are available for review have been received from the Veteran.  A January 2007 Formal Finding on the Unavailability of Service Medical Records and Medical/Physical Evaluation Board Proceedings by the RO finds that such records are unavailable for review.  The RO found that all efforts to obtain needed military information have been exhausted, further attempts are futile, and the records are not available.  In cases where records once in the hands of the government are lost, there is a heightened obligation to explain the Board's findings and conclusions, and to consider carefully the benefit-of-the-doubt rule.  See O'Hare v. Derwinski, 1 Vet. App.  365, 367 (1991).  The analysis of the Veteran's claims is undertaken with this heightened obligation in mind.

In sum, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Analysis

Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  Service connection may also be granted for certain chronic diseases when the disease is manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a).  

The existence of a current disorder is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  That a condition or injury occurred in service alone is not enough.  There must be disability resulting from that condition or injury.  In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit.  Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication).

Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)).  Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity  may be legitimately questioned.   Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.  In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection).  

In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

If a preexisting condition is noted upon entry into service, the Veteran can only bring a claim for aggravation of that condition, not for service connection for the condition itself.  In such case, the Veteran has the burden to show an increase in disability (aggravation) through evidence of symptomatic manifestations of such condition during service.  If the presumption of aggravation arises, the burden shifts to VA to establish, by clear and unmistakable evidence, a lack of aggravation.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).

It is the Board's responsibility to evaluate the entire record on appeal.  38 U.S.C.A. § 7104(a).  When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail.  To deny a claim on its merits, the evidence must preponderate against the claim.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996).

In this case, the Veteran contends that she is entitled to service connection for anemia and pes planus.  

With respect to the claimed anemia, the Board notes that a December 2011 examiner indicated that the Veteran had anemia, but that it had resolved.  Since that time the medical records do not indicate any manifestations or diagnoses of anemia.  

In order to determine whether the Veteran has anemia and whether such condition is related to military service, she was afforded a VA examination in March 2013.  The examiner indicated that the claims file had been reviewed in connection with the report.  The examiner stated that anemia had not been diagnosed at any time since 2006, the appeal period in this case.

With respect to the pes planus claim, the service treatment records and enlistment examination dated in June 1985 indicate that the Veteran had this condition upon entrance into active duty.  The outpatient treatment records also indicate that she  has been diagnosed with and treated for this condition.  

In connection with the claim, the Veteran was afforded a VA examination in December 2011, where she was diagnosed with pes planus.  The examiner indicated that this disorder was less likely as not caused or aggravated by the Veteran's military service.  However, as the examiner did not provide a proper opinion regarding whether such condition preexisted service, the matter was remanded.  Because pes planus was noted on the Veteran's enlistment examination, the Board's remand noted that 38 U.S.C.A. § 1153 was triggered. As such, upon remand the examiner was asked to answer (i) whether it is as likely as not (50 percent probability or greater) that the Veteran's pes planus underwent an increase in severity in service (e.g., a permanent worsening of the underlying disease, as distinguished from a temporary or intermittent flare-up) and, if so (ii) whether the increase in severity was clearly and unmistakably (e.g., highest degree of medical certainty) due to the natural progress of the disease.  See 38 U.S.C.A. § 1153; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

An addendum opinion was provided in March 2013.  The examiner indicated that the Veteran's claims file had been reviewed in connection with the report.  The examiner then found that the Veteran's pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond is natural progression by her military service.  In this regard, the examiner stated that the Veteran service medical records did not indicate any treatment for a pes planus related condition while in active military service.  The examiner stated that this was supported by the Veteran's history, which included the fact that she was never offered inserts for her boots, which the examiner indicated is the first treatment provided during military service when complaints are voiced.  The examiner noted the Veteran complaints of increased metatarsal pain with marching and running while in service.  But the examiner found that these were minor problems for which the Veteran did not seek medical attention.  The Veteran was also indicated to have had gradual foot pain over the years since discharge.  This was found to be the natural progression of the condition.  Finally, the examiner stated that he found to evidence of significant recurrent or chronic aggravation of the Veteran bilateral pes planus due to active military service.

Based on the foregoing, the Board finds that entitlement to service connection for anemia and pes planus is not warranted in this case.  Here, the Veteran has not been found to have anemia during the appeal period.  And as noted above, the existence of a current disorder is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit.  Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007).  The evidence also indicates that the Veteran preexisting pes planus was clearly and unmistakably not aggravated by her military service.  

The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.  The credibility and weight to be attached to these opinions is within the province of the Board.  Guerrieri v. Brown, 4 Vet. App. 467 (1993).  The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).  In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data.  Guerrieri v. Brown, 4 Vet. App. 467 (1993); Black v. Brown, 10 Vet. App. 279 (1997).  In this case, the Board finds that the opinions of the VA examiners in this case to be most persuasive, based as they were on examinations of the Veteran and her claims file.  No refuting competent medical opinions are of record.

The Veteran sincerely believes that her claimed disabilities are related to his service.  In this regard, lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition).   Lay evidence may also be competent to establish medical etiology or nexus.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring) ("the Board should avoid overbroad statements about the competence of laypersons and should carefully distinguish its treatment of lay testimony of symptoms and its analysis of lay competence on issues of diagnosis or causation").   Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  

The Board finds that the diagnosis and etiology of the Veteran's claimed disabilities are complex medical questions, beyond the competency of a layperson.  The Board further finds that the question regarding the relationship between such disabilities and military service to be complex in nature.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  In this regard, the Board acknowledges the Veteran's statements and indications in the record that she has had increasing foot pain during and since service.  However, as to the question of causation, the Board finds that the Veteran's statements are of little probative value as she is not competent to opine on such a complex medical question.  These statements were also considered by the VA examiners in this case, as part of the review of the claims file.  Moreover, in the case of pes planus, the question of continuity of symptomatology since service does not touch on the core question of aggravation in service.  As such, while there is evidence of continuity based on the Veteran testimony of symptoms, this evidence is outweighed in this case by the more probative evidence of the VA examination findings, specifically the finding of no aggravation due to service.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).

The VA examiner's opinions were based on review of the Veteran's claims file and an examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  The VA examiner's opinion, rendered by a medical professional, is afforded significant probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the probative value of medical opinion evidence is based on the personal examination of the patient, the knowledge and skill in analyzing the data, and the medical conclusion reached); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and has sound reasoning for the conclusion.)

In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claims.  The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record.  Hensley v. Brown, 5 Vet. App. 155 (1993).  

Because the preponderance of the evidence is against the claims, the claims must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for anemia is denied.  

Service connection for pes planus is denied.


REMAND

Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration.  VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).

In this case, the remaining matters were remanded by the Board in February 2013 in part in order to afford the Veteran with additional VA medical opinions regarding her claims.  With respect to asthma, sinusitis, allergic rhinitis, an acquired psychiatric disorder (to include major depressive disorder), and narcolepsy, the VA examiner was asked to provide opinions regarding whether (i) it is clear (e.g., highest degree of medical certainty) that such disability preexisted active duty service, and (ii) it is clear (e.g., highest degree of medical certainty) that such disability was not aggravated beyond the normal progress of the disorder during or as a result of active service.  In addition, with respect to any diagnosed psychiatric disorder other than PTSD, the examiner was asked to give an opinion regarding whether such condition had its onset in service, within one year of service, or was such disorder aggravated by active military service.

Additional medical opinions were provided in March and April 2013.  The psychiatric examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by military service.  The examiner stated that the Veteran reported chaotic family life during childhood and adolescence most likely led to the onset of depressive symptoms prior to military service.  The examiner stated that the Veteran's depressive symptoms were in remission and not permanently aggravated beyond the normal course of the disorder by military service. The examiner also found that there was no indication that onset of any mental illness was during military service or related to military service.

With respect to the other claimed disabilities, the March 2013 examiner stated that it was clear that allergic rhinitis and narcolepsy existed before service.  The examiner noted that the Veteran's 1985 entrance examination relates a history of hay fever (allergic rhinitis) and that a 1993 service treatment note related a pre-existing history of narcolepsy.  The examiner stated that there was no compelling data so support whether either condition was aggravated by military service.  The Veteran's service treatment records for allergic rhinitis were indicated to be sporadic and the Veteran did not begin treatment for narcolepsy until 10 years after service.  No opinion was provided with respect to asthma and sinusitis.  

Based on the foregoing, the Board finds that additional opinion is required before adjudicating the remaining claims.  While the Board finds the additional opinions rendered in March and April 2013 helpful, they do not fully comply with the remand questions set forth above.  As such a remand is required.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders).  

Prior to affording the Veteran a VA examination, the RO should associate with the Veteran's claims file records of the Veteran's treatment for her claimed disabilities.  The Veteran should be afforded an opportunity to submit additional medical evidence relevant to her claims that may not be associated with the claims file.  In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Pursuant to the VCAA, VA must obtain outstanding VA and private records.  See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c).

Accordingly, the case is REMANDED for the following action:

1.  The RO should take appropriate steps to contact the Veteran and request that she identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated her for her claimed disabilities. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed.  If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing.  The Veteran may submit medical records directly to VA.

2.  Arrange for the claims file to be reviewed by the examiner(s) that conducted the prior examinations, if available.  The appropriate examiner should review all evidence of record, to include the prior diagnostic studies and VA examination reports, and should provide an addendum report as to the nature and etiology of the Veteran's claimed conditions.  If any further testing or diagnostic studies are required prior to offering such opinions, they should be scheduled.  If the prior VA examiner is not available, the Veteran should be scheduled for another VA examination concerning these questions. 

 With respect an acquired psychiatric disorder (to include major depressive disorder), the VA examiner is asked to identify and state the diagnoses for all acquired psychiatric disorders diagnosed since 2006.

With respect to all of the claimed disabilities (asthma, sinusitis, allergic rhinitis, an acquired psychiatric disorder (to include major depressive disorder), and narcolepsy), the examiner is asked to opine regarding (i) whether there is clear and unmistakable evidence (e.g., highest degree of medical certainty) that such disability preexisted active duty service, and (ii) whether there is clear and unmistakable evidence (e.g., highest degree of medical certainty) that such disability was not aggravated beyond the normal progress of the disorder during or as a result of active service.   In addition, with respect to any diagnosed psychiatric disorder, other than PTSD, did such condition have its onset in service, within one year of service, or was such disorder aggravated by active military service.  The examiner is asked to offer the above opinions separately with respect to each claimed disability.

Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 

A complete rationale for all opinions is requested. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability.

3.  Thereafter, readjudicate the Veteran's claims on appeal.  If the claims remain denied, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate time for response.

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. 2013).




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs