Citation Nr: 1339780 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 05-05 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a lumbar spine disorder, to include as secondary to a service-connected disability. WITNESSES AT HEARING ON APPEAL Veteran and Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to July 1969. The Veteran died in November 2012 and the Appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran and the Appellant testified before the undersigned acting Veterans Law Judge at a Board hearing at the RO in Waco, Texas in March 2009. A transcript of this hearing has been associated with the file. In September 2009 and September 2011 the Board remanded the Veteran's hypertension claim for further development. This development was completed and in a June 2012 decision the Board denied entitlement to service connection for hypertension. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2013 Order, the Court granted a Joint Motion for Partial Remand vacating the Board's denial of the Veteran's hypertension claim and remanding the matter for further proceedings. Also in the June 2012 Board decision, the claim of entitlement to service connection for a lumbar spine disorder was remanded to the Agency of Original Jurisdiction (AOJ) for additional development of her appeal. While at the Court, the Appellant subsequently and timely requested to be substituted as the Appellant for purposes of processing the claim of entitlement to service connection for hypertension to completion. See January 2013 Order of the Court. The Appellant also timely requested to be substituted as the Appellant for purposes of processing the claim of entitlement to service connection for a lumbar spine disorder to completion. See November 2012 Application for DIC and Accrued Benefits and February 2013 Memorandum from the Pension Management Center finding the Appellant as properly substituted. See also Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008). As provided for in this new provision, a person eligible for substitution will include 'a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ....' Therefore, the Veteran's surviving spouse has been substituted for the Veteran. The Appellant retains the Veteran's docket number before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a lumbar spine disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's hypertension is not shown to be due to a disease or injury in-service or to any incident of his military service and did not manifest within one year of separation from service. CONCLUSION OF LAW The Veteran's hypertension was not incurred in or aggravated by military service and did not manifest within one year. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in June 2003 and March 2006. The June 2003 letter advised the Appellant of the information necessary to substantiate the claim, and of her and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The March 2006 letter also advised the Appellant of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the Appellant was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the August 2003 rating decision, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letter as well as the rating decision, statement of the case, and supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Appellant has neither alleged nor proven that prejudice resulted from lack of proper VCAA notice, and therefore, the Board determines that none resulted. See Shinseki, supra. The Appellant has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of her claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. The Appellant has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in March 2011 for his hypertension claim. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed conclusion for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. However, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the March 2009 Board hearing. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that the theory of continuity of symptomatology under 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). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Cardiovascular-renal disease, including hypertension, is such a chronic condition under 38 C.F.R. § 3.309(a). To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Appellant contends that the Veteran's hypertension had its origin during his period of active military service, to include as the result of herbicide exposure and/or stress, or was diagnosed within one year of separation from service. For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. A 10 percent rating for hypertension requires diastolic pressure of predominantly 100 or more; systolic pressure of predominantly 160 or more; or a history of diastolic pressure of predominantly 100 or more with continuous medication required for control. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2013). As was previously noted by the Board in the June 2012 decision, and not disputed by the Appellant's representative, the Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for certain conditions, including circulatory disorders such as hypertension. See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). So, clearly, the Veteran is not entitled to this presumption of service connection because hypertension, his claimed condition, is among those expressly excluded from this presumption. The next question before the Board, then, is whether service connection may be granted on a direct basis. In statements and testimony, the Veteran related having an elevated blood pressure reading on separation from service and having been diagnosed and treated for hypertension within one year of discharge from service. In support of his claim, the Veteran noted that on separation from service in July 1969, his blood pressure in the sitting position was 138/84, which he contends was pre-hypertensive. Significantly, the Veteran submitted various medical articles indicating that a blood pressure of that degree constitutes "prehypertension." The service treatment records show that on enlistment examination in November 1965, his blood pressure was 138/82, in February 1967 it was 130/85, and on separation from service in July 1969, it was 138/84. There was no diagnosis of hypertension at that time or at any time during service. This weighs against the claim that hypertension began in service and continued on thereafter. The Appellant asserted that within a year of discharge from service the Veteran was prescribed medication to control his hypertension. A witness statement from J.C., the Veteran's former mother in law, reported that her daughter told her that the Veteran had experienced stress in service and was diagnosed and treated for hypertension within one year of discharge from service. See August 2007 statement. The mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the Board finds that the medical evidence of record shows the first diagnosis of hypertension was in 2003, over 30 years after separation from service. This length of time without objective evidence of diagnosis or treatment weighs against the Veteran's claim. VA treatment records indicate that the Veteran was continuously treated from 2003 to 2012 for hypertension. He used prescription medication to help control his symptoms. On VA examination in March 2010, the examiner provided that per the rating schedule, hypertension meant that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. The examiner noted that on enlistment examination in November 1965, the Veteran's blood pressure was 136/82, and on separation from service in July 1969, it was "normal at 138/84, and he was taking no medication for hypertension." The diagnosis was essential hypertension. The VA examiner in October 2011 opined that the Veteran did not have hypertension in service, that it was not secondary to Agent Orange or other herbicide exposure, and that the Veteran's hypertension was not secondary to his pre-diabetes condition in 2005 or his diabetes mellitus diagnosed in 2008. The examiner concluded that the Veteran's hypertension was more likely than not essential, that is, not secondary to another disability. Moreover, the examiner pointed out that the Veteran had known complications of atherosclerosis, carotid stenosis, and peripheral vascular disease, among others. Finally, the examiner reported that the Veteran had a strong family history of hypertension. There is no contradictory medical evidence of record. The Board finds that this VA physician's opinion is both competent and credible and, therefore, probative. The opinion is well reasoned, detailed, consistent with the other evidence of record, and included consideration of the relevant history. Prejean v. West, 13 Vet. App. 444 (2000). Additionally, and even more importantly, this commenting VA physician sufficiently discussed the underlying rationale of the opinion, which, rather than mere review of the claims file, is more so where the probative value of the opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Green v. Derwinski, 1 Vet. App. 121 (1991). To the extent that the Appellant asserts continuity of hypertension symptomatology, this assertion of continuity is assigned little probative value. 38 C.F.R. § 3.303(b) (2013); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). In June 2003 the RO requested that the Veteran submit an authorization to release any private treatment records to the VA which may have assisted in the adjudication of his claim. In a July 2003 response the Veteran requested that the VA obtain treatment records for hypertension from the VA Medical Center, beginning in 2003. He did not reference treatment for his hypertension prior to 2003 or at any time by a private treatment provider. The Veteran also responded in July 2003 that the VA should obtain treatment records from Dr. W.M. pertaining to his appendicitis and cancer from 1996. The Veteran also submitted private treatment records in his own possession pertaining to his appendicitis at the Baylor Medical Center in 1996. This indicates that the Veteran had private treatment records in his possession, or the ability to obtain them, and did not provide any medical evidence of his hypertension condition existing prior to 2003. He also did not request that the VA obtain records from earlier than 2003 for his hypertension. Again in March 2006 the Veteran was notified that he should submit any evidence which would help substantiate his claim. Although his claim had already been denied based on a lack of continuity of symptomatology, he did not respond to this request. The Veteran's only request for obtaining private treatment records pertaining to his hypertension was a March 24, 2009 authorization to release records from St. David's for earlier March 4, 2009 treatment. The Appellant has also not provided any additional private treatment records to help substantiate her claim. The duty to assist with claims is not a one-way street. If an Appellant wants help in developing his or her claim, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The RO cannot obtain the Veteran's private treatment records without his authorization and as he has not provided this necessary authorization, or indicated that records specifically relevant to this claim need to be obtained. 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). The Veteran's failure to submit private treatment records pertaining to his hypertension or request that the VA obtain these records for the time period prior to 2003 weighs against the Veteran's contentions that his hypertension began within one year of discharge from service and required continuous medication. In addition to the absence of documented post-service symptomatology related to hypertension for over 30 years, the evidence includes statements of the Veteran and his former mother in law, asserting that he was diagnosed with hypertension within one year of service and began receiving treatment. See August 2007 statement. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, an absence of evidence of a disorder may not be considered substantive negative evidence. See Buczynski v. Shinseki, 24 Vet. App. 221 (2011). The exception is "where the silence in regard to a condition can be taken as proof that a doctor did not observe the symptom" or if the fact would have normally been recorded. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Buczynski, supra. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board has considered the Veteran's and Appellant's assertions that his hypertension is related to his service, to include an elevated blood pressure reading on separation from service, and that he developed hypertension within one year of service discharge. The Board observes that the Veteran, as a layperson, is competent to describe symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). However, hypertension is not a condition where lay observation has been found to be competent to establish a diagnosis or the presence of the disability, therefore the determination as to the diagnosis or presence of the disability is medical in nature and not capable of lay observation. Savage v. Gober, 10 Vet. App. 488 (1997); Barr v. Nicholson, 21 Vet. App. 303 (2007). Although lay evidence may establish a diagnosis of certain medical conditions, such as a simple medical condition, hypertension is not a simple medical condition. The diagnosis requires diagnostic testing and medical evaluation to identify, which a lay person is not qualified to do. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Board finds that the reported lay history of a diagnosis of hypertension which began either in service or shortly thereafter, while competent, is nonetheless not credible. Emphasis is placed on the gap between discharge from active duty service, in 1969, and the first medical evidence of record diagnosing hypertension in 2003, over 30 years after separation from service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). Emphasis is also placed on the fact that the Veteran both supplied private treatment records and authorized VA to obtain outstanding private treatment records from 1996 pertaining to his appendicitis and cancer. However, he did not produce any relevant treatment records showing a diagnosis or treatment for hypertension and he did not authorize the VA to obtain treatment records which would help him substantiate his claim. The Board has also noted that even though the Veteran claimed treatment for hypertension since 1970 he did not supply a physician's statement attesting to this treatment or explain why one could not be obtained (i.e., physician passed away, hospital closed, etc). As noted above, the Board cannot make a determination that the lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, supra; Kahana, supra; Buczynski, supra. However, the Board can weigh the Veteran's service treatment records against the statements of the Veteran, his family, and his friends that he has hypertension that is related to service. The Veteran and J.C. have provided statements that he was diagnosed with and treated for hypertension within one year of separation from service. Although the Veteran contends that he was pre-hypertensive at separation, there is no comment from the examiner as to this effect, nor are there any other references in the service treatment records as to the Veteran being diagnosed with or treated for hypertension. It is also unclear why the Veteran would not provide private treatment records, or authorizations for the VA to obtain them, for a condition he had been treated for beginning in 1970, especially considering his initial claim was filed in 2003 and was not denied by the Board until 2012, which gave him 9 years to provide evidence on substantiating his claim. Unfortunately, this evidence weighs against the Veteran's claim that his hypertension began in service or was diagnosed within 1 year of separation from service. Accordingly, the Board finds the statements asserting an in service diagnosis of hypertension or a diagnosis and treatment within 1 year lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). In addition, although more recently VA clinicians, to include on outpatient treatment in April 2003 and on Agent Orange examination in April 2008, recorded the Veteran's report of onset of hypertension in 1968 or 1970, these notations by a physician do not transform the subjective report into objective competent medical evidence. The Board is not bound to accept medical opinions that are based on history supplied by the Veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Accordingly, these reports are of little probative value and the Board finds that the weight of the competent evidence is against a finding of a continuity of symptomatology. 38 C.F.R. § 3.303(b) (2013); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has considered the research articles submitted by the Veteran in support of his claim. However, the Court has consistently held that medical statement and/or treatise evidence that was too generic and inconclusive as to the specific facts in a case was insufficient on its own to establish causal link for service connection. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998); Wallin v. West, 11 Vet. App. 509, 514 (1998); Mattern v. West, 12 Vet. App. 222, 228 (1999). The Board has considered the research materials provided; however, as they do not specifically address the Veteran's condition, they are assigned less probative value than the VA examiner's opinion. Therefore, based on the foregoing, the Board finds that hypertension is not shown to have had its onset during service, and it is unrelated to a disease, injury, or event during service, including exposure to herbicides, and was not manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is denied. REMAND As previously noted in the June 2012 Board remand, in September 2011 the Board determined a March 2010 VA examiner did not offer an opinion as to whether the Veteran's low back disability had been aggravated by peripheral neuropathy. The Board remanded the claim to obtain a medical opinion with respect to secondary service connection. In an addendum report in October 2011, a VA examiner opined that the Veteran's low back condition produced symptoms of spinal stenosis, rather than the affecting the peripheral nervous system. Therefore, his low back condition did not cause aggravation of his peripheral neuropathy. However, the examiner did not address whether the Veteran's low back disorder had been aggravated by peripheral neuropathy and accordingly, an addendum opinion should be obtained. 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) (2013). Expedited handling is requested.) 1. Provide the Appellant with VCAA notice on substantiating her claim of entitlement to service connection on a secondary basis as well as notice on acting as a substituted party in the appeal. 2. Request that the October 2011 examiner review the claims file and offer an addendum opinion. The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner should offer the following opinion: Is it at least as likely as not that the Veteran's lumbar spine disorder was chronically worsened (aggravated) by his service-connected peripheral neuropathy? A detailed rationale should be provided for all opinions. Conversely, if the examiner concludes that an etiological opinion cannot be provided, he or she should clearly and specifically so specify in the examination report, with an explanation as to why such an opinion cannot be rendered. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is less than 50% likelihood). 3. After the above has been completed, the AOJ must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the Appellant's claim. If the benefits sought on appeal are not granted, the Appellant should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record 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). ______________________________________________ C. L. WASSER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs