Citation Nr: 1340236	
Decision Date: 12/05/13    Archive Date: 12/20/13

DOCKET NO.  08-34 552	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for an eye disorder, to include myopia, astigmatism, and blurry vision. 

2.  Entitlement to service connection for headaches.

3.  Entitlement to service connection for a sinus disorder, to include sinusitis. 

4.  Entitlement to service connection for left side nasal septum deviation.

5.  Entitlement to service connection for a bilateral foot disorder, to include bilateral pes planus. 

6.  Entitlement to service connection for a skin disorder, to include acne vulgaris. 

7.  Entitlement to service connection for a heart disorder, to include a heart murmur with premature ventricular complexes. 

8.  Entitlement to service connection for gastroenteritis. 
REPRESENTATION

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


ATTORNEY FOR THE BOARD

R. Williams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1960 to June 1962. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The Veteran submitted a notice of disagreement with these determinations in December 2007, and timely perfected his appeal in November 2008.

Prior Remands Before the Board

The enumerated claims were previously before the Board and remanded for additional evidentiary development in March 2011 and November 2012, to include obtaining additional VA medical records, records from the Social Security Administration (SSA), and VA examinations.  The claims have since been returned to the Board for adjudication.

Remanded Issues

The issues of entitlement to service connection for: a sinus disorder, to include sinusitis; left sided nasal deviation; a bilateral foot disorder, to include bilateral pes planus; a skin disorder, to include acne vulgaris; a heart disorder, to include a heart murmur with premature ventricular complexes; and gastroenteritis 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.  The Veteran will be notified if any further action on his part is required.

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).


FINDINGS OF FACT

1.  The Veteran currently has refractive error; there is no evidence of a superimposed injury or disease in service that resulted in additional disability.

2.  The preponderance of the evidence is against a finding that the Veteran's cataracts are the result of a disease or injury sustained in active duty service, nor may such be presumed.

3.  The competent and probative evidence of record does not establish that the Veteran has a currently diagnosed headache disability.


CONCLUSIONS OF LAW

1.  The criteria for service connection for an eye disorder, to include myopia, astigmatism, and blurry vision, have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303 (2013). 

2.  The criteria for service connection for a headache disorder have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303 (2013).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  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).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49  (1990). 

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Board notes at the outset that, in accord with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  In this case, the Veteran was sent pre-adjudication notice via a letter dated in December 2006, prior to the April 2007 rating decision that is the subject of this appeal.  In pertinent part, this letter informed the Veteran of the evidence needed to substantiate his current appellate claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra.  Moreover, the December 2006 letter included the information regarding disability ratings and effective dates as mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384  (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2013) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his current appellate claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.  In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

In addition, the Board finds that the duty to assist a claimant in the development of his case has been satisfied.  The Veteran's service treatment records are on file, as are various post-service medical records.  Further, the Veteran has had the opportunity to present evidence and argument in support of his claims.  In April 2011, the SSA responded that the Veteran's records had been destroyed.  VA has no obligation to seek evidence that does not exist.  See Counts v. Brown, 6 Vet. App. 473 (1994).  Nothing indicates the Veteran has identified the existence of any other relevant evidence that has not been obtained or requested.  The Board also notes that the Veteran's electronic Virtual VA file has been reviewed, to which no new and relevant evidence has been added.

The duty to assist also includes providing a thorough and contemporaneous medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990).  Following the November 2012 Board remand, a VA examination was provided in March 2013 to ascertain the nature and etiology of the claimed disabilities.  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The March 2013 VA examination report regarding service connection for an eye disorder is adequate, as the examiner included a thorough review of the file and provided findings relevant to the issues at hand following an examination.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to the claim for service connection for an eye disorder has been met.  38 C.F.R. § 3.159(c)(4) (2013).

Additionally, the Board finds there has been substantial compliance with its November 2012 remand directives.  The Board notes that the Court has stated that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand).  The record indicates that the AMC attempted to obtain the Veteran's outstanding private treatment records, to which no response was given.  As noted above, the AMC also afforded the Veteran the requested medical examination(s) to address the nature and etiology of his claimed disabilities.  An examinations for headaches was refused by the Veteran, however.  Under 38 C.F.R. § 3.655(b), in original claims for service connection, if a veteran refuses to participate in a VA examination, without good cause, the Board must make its decision based on the evidence of record.  Thus, the Board finds a remand for another examination for headaches is not required.  The AMC later issued a supplemental statement of the case in April 2013.  Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand regarding the issues decided herein.  See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. 

II.  Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  

Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377  (Fed. Cir. 2007).

As a final point before proceeding to the specific facts underlying the Veteran's claims, the Board emphasizes that it has considered all relevant, competent evidence of record, both medical and lay.  Competent medical evidence is essentially evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also comprise statements conveying sound medical principles found in medical treatises, as well as statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  See 38 C.F.R. § 3.159(a)(1) (2013).  In contrast, competent lay evidence encompasses any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is considered competent if provided by a person who has knowledge of the facts or circumstances and conveys matters that are capable of lay observation or description.  See 38 C.F.R. § 3.159(a)(2) (2013).  In essence, lay testimony is deemed competent when it pertains to the readily observable features or symptoms of injury or illness.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Eye Disorder, to include Myopia, Astigmatism, and Blurry vision

The Veteran contends that he has an eye disorder as a result of his active duty military service.  During the March 2013 VA examination, the Veteran reported having gradual decrease in vision due to cataracts.  The March 2013 VA examination report indicates that in addition to congenital or developmental errors of refraction, the Veteran has bilateral pseudophakia.  Thus, a current disability has been shown.  Pseudophakia is a condition in which the degenerated crystalline lens is replaced by mesodermal tissue. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1568 (31st ed. 2007).  The VA examiner further remarked that there was no corneal irregularity that results in severe irregular astigmatism.  

Regarding an in-service event, illness, or injury, the Veteran was noted to have refractive error on the July 1960 entrance examination.  However, the Board observes that congenital or developmental defects and refractive error of the eye are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9.  In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia and presbyopia, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection.  38 C.F.R. §§ 3.303(c), 4.9.  Thus, VA regulations specifically prohibit service connection for refractive error unless such defect was subjected to a superimposed disease or injury which created additional disability.  See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury).  Here, there is no indication that the Veteran's refractive error was subjected to a superimposed disease or injury which created additional disability.

The VA examiner noted that the Veteran had cataract surgery in 2007 and 2008 and that his vision was much improved.  The examiner opined that the Veteran's cataracts were neither caused nor aggravated by service.  He noted that the Veteran had refractive error on his entrance examination and that no ocular trauma was noted in the service treatment records.  He further noted that cataracts are an aging process of the lens and the cataracts noted in the Veteran's VA treatment records are consistent with aging and age appropriate.  Regarding whether the Veteran has had any disability attributable to his cataracts, the VA examiner noted that there was no decrease in visual acuity or other visual impairment.  There is no other indication that the Veteran had an injury or disease during service which resulted in additional disability nor is evidence of such shown in the service treatment records.  
The Board acknowledges that the Veteran is competent to report a decrease in visual acuity.  However, the Veteran is not competent to state that any decreased visual acuity in service is due to anything other than refractive error.  See Jandreau v. Nicholson, 492 F.3d 1372 (2007).  As noted above, absent superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection.  The evidence reflects that there is no superimposed disease or injury, and that his cataracts are not related to service.  Thus, service connection for an eye disorder to include myopia, astigmatism, and blurry vision, is not warranted.

Headaches

The Veteran contends that he suffers from headaches as a result of his active duty military service.  The Board notes that the Veteran, as a lay person, is competent to describe his observable symptoms such as headaches.  However, competent medical evidence is required to attribute such complaints to a chronic disability such as a headache disorder.  Here, nothing of record shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion.  Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1).

In this case, a thorough review of the competent medical evidence does not reflect the Veteran currently has a headache disorder.  Specifically, current VA treatment records are negative for any complaints, diagnoses, or treatment for a headache disorder.  As noted above, the Veteran refused examination for his headaches.  In addition, according to the 2013 VA examination report, he stated that he has not had any headaches in many years and that his last migraine was shortly after service.  The Veteran specifically denied having any sinus headaches.  Further, he denied headaches during routine VA visits.  See VA treatment records dated in June 2008, November 2011, and May 2012.  


Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131.  In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders.  The United States Court of Appeals for the Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme.  Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (Holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (The law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability).  Simply put, in the absence of proof of present disability there can be no valid claim. 

The Board acknowledges that the Court held in McLain v. Nicholson, 21 Vet. App. 319 (2007) that 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 claim's adjudication.  In this case, however, the record does not reflect the Veteran has been diagnosed with a headache disorder during the pendency of this case.  Thus, without evidence of a current disability, service connection for a headache disorder is not warranted.

For the reasons stated above, the Board has concluded that the preponderance of the evidence is against the Veteran's claims of service connection for an eye disorder, to include myopia, astigmatism, and blurry vision and headaches.  As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case.  See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Consequently, these benefits sought on appeal with respect to these claims must be denied.
ORDER

Entitlement to an eye disorder, to include myopia, astigmatism, and blurry vision, is denied.

Entitlement to service connection for headaches is denied. 


REMAND

Unfortunately, an additional remand is required prior to adjudicating the Veteran's claims of entitlement to service connection for: a sinus disorder; left side nasal septum deviation; a bilateral foot disorder; a skin disorder; a heart disorder; and gastroenteritis.  Addendum opinions are necessary to properly adjudicate these claims.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  

Regarding the claim for service connection for a sinus disorder, to include sinusitis, the 2013 VA examiner opined that the Veteran's pre-existing sinusitis/rhinitis was not aggravated while on active duty.  However, an opinion addressing a direct theory of entitlement is not of record.  The Veteran was treated for rhinitis during service.  See September and December 1961 service treatment records.  Upon separation, the Veteran's nasal mucosa was congested.  The April 1962 Report of Medical History reflects a notation of sinusitis and hay fever, which appear to be under treatment at that time.  Post service VA treatment records reflect a diagnosis and treatment of sinusitis in November 2002 and a notation of chronic sinusitis in July 2003.  Thus, an addendum opinion is needed to determine whether any recent sinus disorder, to include sinusitis, is related to an in-service event or illness, to include sinusitis noted on the 1962 Report of Medical History upon separation.

Regarding the claims for left side nasal septum deviation, a bilateral foot disorder, and a heart disorder, addendum opinions are necessary to properly adjudicate these claims on the basis of aggravation of a disorder that may have preexisted service.  The March 2013 VA physician did provide opinions and rationales as instructed by the 2012 Board Remand.  However, an addendum opinion is needed to satisfy the "onerous" and "very demanding" clear-and-unmistakable-evidence standard.  See Cotant v. Principi, 17 Vet. App. 116, 131 (2003).  

Regarding the claim for a skin disorder, no opinion was provided as requested by the 2012 Board Remand.  According to the July 1960 induction examination, the Veteran had acne vulgaris.  Service treatment records reflect a notation of "urticaria, achromycin, face" in July 1961 and pruritic wheel like lesions on his neck and left shoulder in September 1961.  His separation examination reveals a normal skin evaluation.  Although the Veteran declined an examination, an opinion is needed regarding whether the Veteran's preexisting acne vulgaris was aggravated in service.  

Regarding the claim for service connection for gastroenteritis, the 2013 VA examiner opined that the Veteran's gastritis is less likely as not incurred in, aggravated by, or a result of the Veteran's active service, to include his in-service treatment for acute gastroenteritis in April 1962.  Although the VA examiner did provide the opinion and rationale as instructed in the 2012 Board Remand, an addendum opinion is needed to determine whether a recent August 2007 acute gastroenteritis diagnosis is related to the in-service diagnosis of acute gastroenteritis.

Given the need for the addendum opinions, the claims folder will be returned to Dr. C. C., who provided the March 2013 VA opinions, to provide addendum opinions.  See 38 C.F.R. § 4.2 (if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes).  If the March 2013 VA examiner is no longer available, another qualified VA clinician will provide the addendum opinions.  Another VA examination is not necessary in the present case.




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Accordingly, the case is REMANDED for the following actions:

(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.  Obtain a VA addendum report from the March 2013 VA examiner, Dr. C.C.  If the March 2013 VA examiner is no longer available, another qualified VA clinician must provide the addendum report.  The claims folder must be made available for review and the addendum reports must state whether such review was accomplished.

The March 2013 VA examiner, or other qualified VA clinician, must provide separate addendum medical opinions answering the following questions: 

(i)  Is it "at least as likely as not" that any current sinus disorder, to include the 2002 and 2003 diagnosed sinusitis, was incurred in, aggravated by, or otherwise the result of the Veteran's active service, to include the 1962 sinusitis noted prior to separation from service?

(ii)  Is it "undebatable" or "obvious" or "absolutely certain" or "clear and unmistakable" that the Veteran had a left side nasal septum deviation prior to entering military service in July 1960 ( i.e., a pre-existing nasal septum deviation)? 

(iii)  If the Veteran did have a pre-existing left side nasal septum deviation prior to military service, is it "undebatable" or "obvious" or "absolutely certain" or "clear and unmistakable" that this left side nasal septum deviation did not permanently increase in severity beyond its natural progression during his military service?
(iv)  Is it "undebatable" or "obvious" or "absolutely certain" or "clear and unmistakable" that the Veteran had a heart disorder, to include a murmur with premature ventricular complexes, prior to entering military service in July 1960 ( i.e., a pre-existing heart disability)? 

(v)  If the Veteran did have a pre-existing heart disability prior to military service, is it "undebatable" or "obvious" or "absolutely certain" or "clear and unmistakable" that a heart disorder did not permanently increase in severity beyond its natural progression during his military service?

(vi)  Is it "undebatable" or "obvious" or "absolutely certain" or "clear and unmistakable" that the Veteran's pre-existing pes planus did not permanently increase in severity beyond its natural progression during his military service?

(vii)  Is it "undebatable" or "obvious" or "absolutely certain" or "clear and unmistakable" that the Veteran's acne vulgaris did not permanently increase in severity beyond its natural progression during his military service?

(viii)  Regarding the Veteran's diagnosis of acute gastroenteritis, is it "at least as likely as not" that any recently diagnosed gastrointestinal disability, to include the 2007 diagnosed acute gastroenteritis, was incurred in, aggravated by, or otherwise the result of the Veteran's active service to include his in-service treatment for acute gastroenteritis in April 1962?



(ix)  In making the above determinations, the VA examiner must directly answer the above questions as written.  It is essential the VA examiner utilize the appropriate language.  

A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation.  The examiner should also provide reference to the relevant medical treatise authority utilized in rendering each opinion.  A bare conclusion will be returned.

2.  Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed.  In particular, the AMC/RO should review the addendum report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268 (1998).

3.  After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review.  If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in November 2012, and provide them an opportunity to respond.  The claims should then be returned to the Board for further appellate consideration, if in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
K. A. KENNERLY
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs