Citation Nr: 1341683 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 11-10 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to service connection for a left hip disorder, to include as secondary to a right hip disorder and low back disorder. 3. Entitlement to service connection for a low back disorder. 4. Entitlement to service connection for cancer of the mouth, claimed as a mouth tumor. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from March 1956 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In April 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. The Board notes that the Veteran's appeal originally included the issue of entitlement to service connection for prostate cancer. However, in his April 2011 VA Form 9, the Veteran limited the appeal to the claims listed on the title page. A statement of the case was issued again in July 2011, which addressed the issue of entitlement to service connection for prostate cancer; however, a substantive appeal was never received. Accordingly, the issue is not currently on appeal. The Board also notes that the Virtual VA system contains VA treatment records that are not physically in the file. However, those records were considered by the RO in the last supplemental statement of the case. Therefore, there is no prejudice in the Board proceeding with consideration of such evidence. The Veteran's claims were previously before the Board and remanded in May 2013. As will be discussed in greater detail below, there was compliance with all remand directives related to the issues decided herein, and the claims are properly before the Board at this time. The Board also denied entitlement to service connection for hypertension in May 2013. As such, this issue is no longer before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for cancer of the mouth 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. FINDINGS OF FACT 1. The Veteran has not been shown to have a right hip disorder, including arthritis, that manifested in service or to a degree of 10 percent or more within one year thereafter or that is causally or etiologically related to his service. 2. The Veteran has not been shown to have a left hip disorder, including arthritis, that manifested in service or to a degree of 10 percent or more within one year thereafter or that is causally or etiologically related to his service. 3. The Veteran has not been shown to have a left hip disorder that is proximately due to or aggravated by a service-connected disability. 4. The Veteran has not been shown to have a low back disorder, including arthritis, that manifested in service or to a degree of 10 percent or more within one year thereafter or that is causally or etiologically related to his service. CONCLUSIONS OF LAW 1. A right hip disorder was not incurred in active service, and arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. A left hip disorder was not incurred in active service, arthritis may not be presumed to have been so incurred, and a left hip disorder is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). 3. A low back disorder was not incurred in active service, and arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to the claims being decided herein, the RO did provide the appellant with notice in June 2010, prior to the initial decision on the claims in August 2010. That letter informed the Veteran about the information and evidence that is necessary to substantiate his claim for service connection and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. The Board does not that the June 2010 letter did not include notice regarding secondary service connection. However, such notice was provided in June 2013, after the initial adjudication of the claim. Following that June 2013 notice, the Veteran's claim was readjudicated in an October 2013 supplemental statement of the case, thereby curing any timing defect. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment and personnel records, as well as all identified and available VA medical records pertinent to the years after service, are in the claims file and were reviewed by both the RO and the Board in connection with the claims. The Veteran and his representative have not identified any outstanding records that are pertinent to his claims being decided herein. In October 2010, based upon information provided by the Veteran, the RO requested a line of duty report relative to the Veteran's reported in-service fall. In November 2010, the National Personnel Records Center indicated that this document or information was not a matter of record. As noted above, the Veteran's service personnel records have been obtained. Therefore, the Board finds that all due process has been met with regard to requesting a line of duty determination that possibly exists. The Veteran was also provided the opportunity to testify at a hearing before the Board in April 2013. During that hearing, the undersigned Veterans Law Judge identified the issues appeal and clarified where the Veteran had received treatment and whether there were any outstanding records. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In October 2013, the Veteran was afforded a VA examination regarding the claims on appeal. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed in more detail below, the Board finds that the October 2013 VA examination and opinion are adequate, as they are predicated on a review of the claims file, the pertinent and credible evidence of record, and current findings. In addition, the October 2013 examiner provided a thorough rationale for the conclusions reached that was based upon the credible evidence of record. When the Veteran's claims were previously before the Board in May 2013, they were remanded to provide the Veteran with notice regarding secondary service connection and to afford him an examination on the matters decided herein. The required notice was provided in the June 2013 letter, and the examination was conducted in October 2013. The examination report was responsive to all of the Board's remand directives. Therefore, there has been compliance with the Board's remand, and no further development is necessary regarding the issues decided herein. Stegall v. West, 11 Vet. App. 268 (1998). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis 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, 1131. 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 disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, such as arthritis, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Service connection cannot be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 38 C.F.R. § 3.310; 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a back disorder or a right or left hip disorder. First, the Board notes that diagnoses related to the left and right hips and the back have been identified during the appeal period. Degenerative joint disease of the lumbar spine is shown as a diagnosis in a June 2011 VA outpatient record. The October 2013 VA examination report also contains diagnoses of right hip total arthroplasty (with a suspected prior history of degenerative joint disease) and left hip degenerative joint disease. Therefore, the presence of current disabilities is not in question and this element of the claims for service connection is established. Furthermore, the Veteran has reported slipping and falling during service and injuring his right hip and low back. In August 2010, the Veteran stated that he fell off an aircraft while on board a ship in service and injured his hip and back. In October 2010, the Veteran further stated that he went to see the corpsman that day and the doctor the next day. In an April 2011 written statement, the Veteran indicated that he fell off the wing of an aircraft while repairing it in service. In April 2013, the Veteran testified before the undersigned that he slipped while changing a hydraulic pump on an aircraft, hit his right side and back on the flight deck, and then slipped towards the side before someone stopped him. He stated that he went to sick bay, but no one was there. He indicated that he then went the next day, was diagnosed as having bruising, and was put on light duty for a couple of days. During his October 2013 VA examination, the Veteran reported a similar history with regard to his injury. Given the consistency with which the Veteran has reported this in-service injury and his documented position in service as an aviation structural and hydraulics mechanic, the Board finds that the Veteran's description of his in-service injury is credible. His report of being diagnosed as having bruising and being placed on light duty for a couple of days is also credible. Therefore, an in-service event, as described by the Veteran, is shown by the credible evidence of record. At issue, then, is whether there is a relationship between the currently diagnosed disorders and the in-service injury, to include a determination as to whether a chronic disease was established during service or within one year of separation or whether symptoms of a chronic disease have existed since then. The relevant opinions of record are those of the Veteran and the October 2013 VA examiner. In his written and oral statements, the Veteran has generally alleged that his currently diagnosed right hip and low back disabilities are related to his injury in service and that his left hip disability is secondary to his right hip disability. He asserted during his Board hearing that his symptoms have existed since that first injury during service. He testified before the undersigned that he self-medicated with over-the-counter pain medication until he sought treatment at VA approximately ten years ago. He believed that his left hip disability arose from his compensating for his right hip symptoms. In the October 2013 VA examination report, the examiner reviewed and detailed the Veteran's service records and statements regarding his in-service injury. Following examination of the Veteran and a review of the record, the examiner concluded, first, that the Veteran's reports of continuity of symptomatology related to his right hip and low back were not credible. The examiner then concluded that it was less likely as not that the Veteran's low back condition was related to his service and described events and stated that it was more likely as not related to his age, a lifetime of wear and tear, and particularly to his morbid obesity. The examiner noted as a rationale the lack of evidence of injury during service and the normal separation examination. He also relied on the lack of continuity of any back or hip problem since service. In fact, the examiner concluded that the medical records instead indicated that these complaints were separate, isolated, and associated with separate events. Likewise, the examiner opined that it was less likely as not that the Veteran's right hip condition was related to his service and more likely that it was related to arthritis from a lifetime of wear and tear and his morbid obesity. The examiner again points to a rationale that includes no evidence in the service treatment records and a lack of continuity of symptomatology since separation. He further elaborated that morbid obesity is a well-known risk factor for degenerative joint disease. The Veteran's right hip was replaced in 1997, and the examiner presumed that degenerative joint disease was the reason, although he had no records to verify that. Finally, the examiner opined that it was less likely as not that the left hip condition was secondary to any event associated with service and more likely that it was due to a lifetime of wear and tear and the Veteran's morbid obesity. It was less likely as not that the left hip condition was secondary to the right hip and low back condition and more likely that it was due to a lifetime of wear and tear and the Veteran's morbid obesity. The examiner further concluded that there was no evidence that the back and right hip were injured or are associated with service events. The left hip examination was also normal upon separation, and his current left hip x-ray shows only mild degenerative joint disease, which would be in keeping with his lifestyle and age. The morbid obesity was, by far, the biggest risk factor for both hips. Again, the examiner stated that there was no evidence of continuity and a 50-year gap in the record. Even the Veteran's complaints once he sought treatment at VA are not continuous but variable in origin and occurrence. There was no evidence that the right hip or back condition aggravated or worsened the Veteran's left hip condition. The statements of the Veteran and the VA examiner's report are the two pertinent opinions of record. Therefore, the Board must weigh their probative value. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the provider's knowledge and skill in analyzing the data, and the medical conclusion the provider reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). With regard to the VA examiner's report, the Board must be able to conclude that the medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). See also Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177, 180 (1995); Knightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998). Here, this is the case. The VA examiner detailed the pertinent facts gleaned from both an interview with the Veteran and a review of the claims file. He provided rationales relative to all claims decided herein. The Board does note that the examiner relied, in part, on a finding that there was no evidence of an injury in service. As stated above, the Board has found that the Veteran's description of the in-service fall is credible. However, the Board points out that this is only one of several rationales put forth by the VA examiner for his opinions. Therefore, the Board concludes that this inaccuracy does not affect the overall adequacy of the opinion rendered. The Board also points out that the examiner stated more than once that there was no continuity of symptomatology since separation from service and relied on this rationale in rendering his opinion. As will be discussed in much greater detail below, the Board also finds that there is no credible evidence of record showing continuity of symptomatology related to any of the claimed disabilities since service. Therefore, the examiner's reliance on this finding in supporting his opinion is appropriate. Turning to an evaluation of the Veteran's opinion, the Board notes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology, see Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau), such statements must be weighed against the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board finds that the examiner's opinion is more probative than the Veteran's for several reasons. First, the Board points out that the VA examiner is a physician. As such, he has knowledge, experience and education that the Veteran, as a layperson, is not shown to have. In addition, the VA examiner provided several rationales for the opinions he rendered. The Veteran has only generally asserted, on some occasions, that his back and right hip were injured during service and still caused him problems. To a large extent, the Veteran's opinions are based on his recent assertions that his right hip and low back have bothered him since his injury during service. However, as will be explained in more detail below, the Board finds these statements suggesting continuity are not credible. Thus, the Board finds that the VA examiner's opinion is more probative than the Veteran's on the matter of whether he has a right hip or low back disorder that is related to service. To the extent that the Veteran asserts that his left hip disorder is secondary to or aggravated by his right hip disorder, in the absence of service connection for the primary disability, this theory of entitlement is not available to him. The Veteran has advanced no argument that his left hip was injured in service or is related to the fall that happened therein. Therefore, as the VA examiner provided an opinion that the left hip disorder was not related to service and there is no opinion of record suggesting otherwise, that is the only probative evidence of record on that particular matter. As such, service connection under the provisions of 38 C.F.R. § 3.303(a) is not warranted. Turning to the provisions of 38 C.F.R. § 3.303(b), the Board also finds that service connection is not warranted. The Veteran has been shown to have degenerative joint disease of the left hip and low back. The VA examiner hypothesized that the Veteran had arthritis of the right hip prior to his hip replacement in 1997, but had no records confirming that fact. Nevertheless, there is no evidence that arthritis of either hip or the low back was shown in service or manifested within one year of separation. The Veteran does not contend that this is the case, and there are no medical records suggesting it. As noted above, the Veteran's spine and lower extremities were normal upon separation. In addition, there were no manifestations sufficient to identify arthritis during service. The Veteran's statements and the service records are the only pertinent evidence documenting his treatment during service. As noted above, the service treatment records contain no evidence of manifestations regarding the hips or back. The Veteran has only stated that he was treated for bruises of the right hip and back during service and put on light duty for two days. There is no evidence that this is indicative of arthritis in any way. Furthermore, to the extent that the Veteran asserts continuity of symptomatology regarding his right hip and low back, the Board finds that these statements are inconsistent and not credible. First, the Veteran filed his original claim for VA benefits in September 2008 and did not include a claim relevant to either hip or his back. In this case, the Veteran was affirmatively claiming benefits, but failed to raise claims regarding disabilities he now states have been present since service. The Board finds that this is negative evidence regarding continuity of symptomatology. In addition, the Board has obtained the Veteran's VA treatment records. None of these records show that the Veteran reported a history of an initial injury to his right hip or back in 1957. Instead, he reports pain that began when he fell at his daughter's house in October 2007, low back and right hip pain for several years in November 2009, back pain that started a while ago but got worse in the past few days in June 2011, right hip pain that began just days earlier in September 2011, right hip pain that began with the cold weather in January 2012, right hip pain for five years in February 2013, and right hip pain that started one month ago in August 2013. The Veteran never reported a more remote symptom history to his treating providers than "several years." The Board finds that a patient's report to a treatment provider when seeking medical attention is highly probative evidence with regard to the onset and history of the symptomatology. This highly probative evidence regarding continuity conflicts with the Veteran's recent written and oral statements. First, the Board notes that, in his initial statements to VA, the Veteran did not allege such continuity. He did not report such continuity until the Veteran testified before the undersigned in April 2013. On the whole, and balancing the evidence of record, the Board finds that the credible evidence of record supports a finding that there is not continuity of symptomatology of the Veteran's hip or low back disorders from separation until the shown diagnoses of degenerative joint disease. The Veteran's statements regarding symptomatology history are, at best, variable. They also conflict with the other evidence of record, to include the Veteran's original claim and his reports as to history to his treatment providers. As such, the Board cannot rely on them to show that such continuity existed. There is no other evidence suggesting continuity of symptomatology, as there is a nearly 50-year gap in treatment records, from separation and when the Veteran first sought treatment at VA in 2007. Therefore, the credible evidence of record shows that continuity of symptomatology did not exist since separation, and, therefore, entitlement to service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted. In reaching the decision above, the Board has also considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right hip disorder is denied. Service connection for a left hip disorder, to include as secondary to a right hip disorder and low back disorder, is denied. Service connection for a low back disorder is denied. REMAND The Board finds that additional development is necessary prior to final adjudication of the claim remaining on appeal. The Veteran was afforded a VA examination in July 2013 on the matter of entitlement to service connection for cancer of the mouth, but the Board finds that it is inadequate. The examiner provided no opinion as to whether any current disability was related to service because no manifestations were found on that examination. However, as noted in the Board's previous remand, during the appeal period, the Veteran was treated for an ulcerated lesion on the left upper lip in August 2010 and a lesion on the nose in May 2012. Therefore, an addendum opinion is needed to determine whether either of these manifestations that occurred during the appeal period is related to service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran's claims file should be returned to the July 2013 VA examiner or, if unavailable, another suitably qualified examiner, for the purpose of obtaining an addendum opinion as to the etiology of any cancer or lesions of the mouth that may be present at any point during the appeal period. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all diagnoses pertaining to cancer or lesions of the mouth, to include any manifestations that were present at any time during the appeal period (began in April 2010). The examiner should address the fact that the Veteran was treated for an ulcerated lesion on the left upper lip in August 2010 and a lesion on the nose in May 2012. For each diagnosis identified, the examiner should state whether the disorder existed prior to service. If so, he or she should state whether the preexisting disorder(s) worsened in severity during service and whether the increase in severity was consistent with the natural progression of the disease or whether the increase represented a permanent worsening or "aggravation" of the disease beyond its natural progression. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. If any disorder did not preexist service, the examiner should indicate when the disorder manifested and whether it is at least as likely as not that that the disorder is related to the Veteran's military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. After the development requested has been completed, the RO/AMC should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 3. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the appellant and his representative should be furnished a supplemental statement of the case and be 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). ______________________________________________ J. W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs