Citation Nr: 1802528 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-11 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 7, 2013. 2. Entitlement to service connection for right inguinal hernia, to include as secondary to left inguinal hernia. 3. Entitlement to service connection for an acquired psychiatric condition, to include post-traumatic stress disorder (PTSD), anxiety, and depression, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD B. Gabay, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1964 to March 1966, including service in the Republic of Vietnam. The matter of an acquired psychiatric disorder comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied to Veteran's claim for depression with anxiety (claimed as mental disorder). In a separate rating decision in March 2011, the RO denied the Veteran's claim for service connection for PTSD. In a December 2014 remand, the Board recharacterized the Veteran's claims for a mental disorder and PTSD as shown on the title page. See Clemons v Shinseki, 23 Vet. App. 1 (2009). The matter of a right inguinal hernia comes before the Board on appeal from a February 2012 rating decision of the RO, which denied the claim. The matter of TDIU was initially raised pursuant to Rice v. Shinseki in an October 2009 claim for increased compensation. See 22 Vet. App. 447 (2009). In a December 2014 decision, the Board granted the Veteran's claim for TDIU effective November 7, 2013. In September 2015, the Board remanded the Veteran's claim as to entitlement to a TDIU prior to November 7, 2013. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of service connection for right inguinal hernia and acquired psychiatric condition are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence of record demonstrates that the Veteran was unable to maintain substantially gainful employment prior to November 7, 2013. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to November 7, 2013, have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.104, 3.151, 3.155, 3.156, 3.400, 4.16(a), 4.16(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). TDIU Initially, the Board notes that the Veteran filed his claim for TDIU in October 2009, the date he filed his claim for increased compensation for his service-connected left inguinal hernia. See Rice, 22 Vet. App. 447. He was granted TDIU effective November 7, 2013. The issue before the Board is whether the Veteran is entitled to a TDIU prior to November 7, 2013. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). A. Extraschedular consideration prior to February 2, 2012 In determining whether the Veteran is eligible to receive TDIU benefits prior to November 7, 2013, the Board observes that the Veteran's service-connected disabilities did not meet the schedular criteria for a TDIU prior to February 2, 2012. Specifically, prior to February 2, 2012, the Veteran's service-connected disabilities include the following: diabetes mellitus, type 2 with erectile dysfunction, evaluated as 20 percent disabling; right upper extremity peripheral neuropathy associated with diabetes mellitus, type 2 with erectile dysfunction, evaluated as 10 percent disabling; left upper extremity peripheral neuropathy associated with diabetes mellitus, type 2 with erectile dysfunction, evaluated as 10 percent disabling; left lower extremity peripheral neuropathy associated with diabetes mellitus, type 2 with erectile dysfunction, evaluated as 10 percent disabling; right lower extremity peripheral neuropathy associated with diabetes mellitus, type 2 with erectile dysfunction, evaluated as 10 percent disabling; and left inguinal hernia, post-operative, evaluated 10 percent disabling. While the Veteran's neuropathic related disabilities combined to a 40 percent evaluation under 38 C.F.R. § 4.25, the Veteran's combined disability rating was only 60 percent. Thus, prior to February 2, 2012, the Veteran failed to meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a). However, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, extraschedular consideration applies, and the question becomes one of the Veteran's employability in view of his service-connected disabilities. The Board finds a clearly indicated total impairment of working capacity from at least October 27, 2009, the date of his claim. In examinations dated in January, July, and December 2010, the Veteran reported that he was retired. In January 2010, the Veteran was noted to have retired due to age or duration of work. However, in July and December 2010, the Veteran reported that he retired due to medical reasons. Additionally, in the December 2010 VA examination, the Veteran reported worsening neuropathy symptoms, including numbness and pain in his hands, arms, and feet. The examiner noted that the condition affects the Veteran's functionality and occupation in the form of increased absenteeism, lack of stamina, and pain. The examiner noted the Veteran's usual occupation as marketing, but that he retired in 2006 due to neuropathy. The Board notes that the claim was referred to the Director, Compensation Services for extraschedular consideration. In a January 2017 Memorandum, the Appeals Resource Center declined to recommend a grant of an extraschedular evaluation for a TDIU any time prior to November 7, 2013, noting that the Veteran failed to cooperate with a request for private treatment records. However, in its October 2017 SOC, the RO recommended a grant of unemployability from October 27, 2009, citing the Veteran's worsening neuropathy. Having considered the above, the Board awards TDIU effective October 27, 2009, primarily based upon December 2010 VA examination for peripheral neuropathy associated with diabetes mellitis, which found that the Veteran's numbness and pain in his extremities effectively rendered him unemployable. Based on this examination, it is clear in that the Veteran's diabetic neuropathy was the cause of his lack of employability prior to February 2, 2012. On grounds primarily of this unequivocal opinion, the Board considers the threshold for TDIU on an extraschedular basis to be met. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also Howell v. Nicholson, 19 Vet. App. 535, 540 (2006). B. Schedular consideration from February 2, 2012 to November 6, 2013 In determining whether the Veteran is eligible to receive TDIU benefits prior to November 7, 2013, the Board observes that the Veteran's service-connected disabilities met the schedular criteria for a TDIU from February 2, 2012. Specifically, from February 2, 2012, the Veteran's service-connected disabilities include the following: diabetes mellitus, type 2 with erectile dysfunction, evaluated as 20 percent disabling; right upper extremity peripheral neuropathy associated with diabetes mellitus, type 2 with erectile dysfunction, evaluated as 20 percent disabling; right lower extremity peripheral neuropathy associated with diabetes mellitus, type 2 with erectile dysfunction, evaluated as 20 percent disabling; left lower extremity peripheral neuropathy associated with diabetes mellitus, type 2 with erectile dysfunction, evaluated as 10 percent disabling; left upper extremity peripheral neuropathy associated with diabetes mellitus, type 2 with erectile dysfunction, evaluated as 10 percent disabling; and left inguinal hernia, post-operative, evaluated 10 percent disabling. The Veteran's neuropathy-related conditions combines to 48 percent. See 38 C.F.R. § 4.25. Adding the bilateral factor, the rating is 53 percent, which is then converted to the nearest degree divisible by 10, which is 50 percent. See 38 C.F.R. §§ 4.25, 4.26. His combined service connected rating is 70 percent. Therefore, the Veteran meets the schedular criteria for a TDIU from November 2, 2012. 38 C.F.R. § 4.16(a) (2017). In a February 2012 VA examination, the Veteran was found to have complete paralysis of the sciatic nerve in his lower extremities due to diabetic peripheral neuropathy. The examiner agreed with the Veteran's assertion that he was no longer able to drive due to increased loss of coordination of the legs, thus concluding that the condition had impacted his ability to work. In a November 2015 VA examination, the Veteran was found to be unable to hold and secure a full-time regularly scheduled occupation even in a sedentary environment "since prior to 2013" due to worsening peripheral neuropathy conditions. The examiner noted serious limitations in the Veteran's performance of any type of occupations due to loss of stamina and endurance, limits on the time the Veteran can sit, stand, and walk, lost dexterity of the hands, an inability to push, pull and handle objects, and an inability to lift and carry more than 15 pounds. In conjunction with the arguments detailed in granting the Veteran an extraschedular TDIU prior to February 2, 2012, and in consideration of the Veteran's grant of a schedular TDIU from November 7, 2013, the Board finds that the Veteran's diabetic peripheral neuropathy rendered him unemployable from October 27, 2009. In resolving all doubt in the Veteran's behalf, entitlement to a TDIU has been established and his appeal is granted. 38 C.F.R. § 4.16. ORDER A TDIU prior to November 7, 2013, is granted. REMAND Right Inguinal Hernia The Veteran is service connected for a left inguinal hernia, effective February 1975. The Veteran asserts that his currently-diagnosed right inguinal hernia is secondarily related to his service-connected left inguinal hernia. The Veteran was initially diagnosed with the right inguinal hernia in a March 2007 VA examination. The examiner noted it to be "soft, movable, and not tender." In a January 2010 VA examination, the Veteran was again diagnosed with a right inguinal hernia, which was noted to be two centimeters in length and not previously repaired. The diagnosis was again noted in a July 2010 VA examination. In a February 2012 VA examination, the examiner noted that the Veteran's right inguinal hernia had never been repaired. The examiner concluded that the Veteran's right inguinal hernia was less likely than not related to his service-connected left inguinal hernia. The examiner stated that right and left inguinal canals are independent of one another and are not connected. The examiner noted causes of inguinal hernias to be increased pressure within the abdomen; a combination of increased pressure within the abdomen and a pre-existing weak spot in the abdominal wall; straining during bowel movements or urination; heavy lifting; fluid in the abdomen (ascites); pregnancy; excess weight; and chronic coughing or sneezing. The examiner added that in many people, the abdominal wall weakness that leads to an inguinal hernia actually occurs at birth when the abdominal lining fails to close properly. Alternatively, the examiner opined that inguinal hernias can occur later in life when muscles weaken or deteriorate due to factors such as aging, strenuous physical activity, or smoking. However, the examiner did not opine as to the etiology of the Veteran's right inguinal hernia. After a Board remand, the Veteran again underwent a VA examination in February 2015 to determine the nature and etiology of his right inguinal hernia. The examiner concluded that the Veteran's right inguinal hernia was less likely than not etiologically related to service. The examiner noted that the Veteran's service treatment records (STRs) were silent for a diagnosis of or treatment for a right inguinal hernia. The examiner also stated that most inguinal hernias happen because an opening in the muscle wall does not close as it should before birth, which leaves a weak area in the belly muscle. He added that pressure on that area can cause tissue to push through and bulge out. The examiner opined that inguinal canals from the left and right side are independent of one another and do not connect. However, the examiner did not opine as to whether the Veteran's left inguinal hernia could have aggravated his right. As a result, the claim was once again remanded. In November 2015, an addendum opinion addressing secondary service connection was offered. However, the examiner provided no rationale, stating only that "[i]nguinal canals from left and right side are independent from each other, they do not connect." The VA examinations do not adequately address whether the Veteran's currently diagnosed right inguinal hernia could have been affected by his service-connected left inguinal hernia. While the examiners state that inguinal canals are independent of one another, such an assertion is inadequate as to whether one inguinal hernia can aggravate another. Thus, a remand is necessary to obtain yet another addendum opinion in regards to aggravation. Acquired Psychiatric Disorder The Veteran claims that he has an acquired psychiatric disorder, to include PTSD, anxiety, and depression, caused by events in service or aggravated by a physical disability related to his service. The Veteran's DD-214 establishes that he served in Vietnam and experienced combat. In a March 1966 separation examination, the Veteran checked the box marked "report nervous trouble." No additional information was provided. An October 1967 psychiatric report notes the Veteran's complaints of nervousness, tension, stomach distress, and "fluttering" followed by nausea and vomiting. The examiner also noted "irritability, hostility, and fear of the unknown." The Veteran reported his symptoms occurred daily. The Veteran stated that the symptoms began in service, but had worsened. He was diagnosed with anxiety reaction, moderately severe. The record indicates that the Veteran was not again treated for a mental condition until October 2006, when a VA psychiatric consultation note diagnosed the Veteran with anxiety NOS (not otherwise specified). However, the examiner did not indicate the nature or etiology of the Veteran's condition. VA outpatient treatment records from September 2009 to February 2010 establish treatment for both anxiety and depression. The Veteran underwent a VA examination in January 2011 in which he reported being exposed to combat stressors while stationed in Vietnam. The examiner noted that the Veteran experienced PTSD-related symptoms over the past year, including insomnia, war memories, and early awakenings. The Veteran reported seeing Dr. Juarbe, his private psychiatrist, irregularly for his symptoms, and that he had been experiencing his symptoms frequently for approximately four years. Yet, the examiner found there to be no evidence of actual psychiatric treatment in the claims file, to include the "irregular" visits made to the private psychiatrist. The examiner did note that the Veteran was seen at VA's psychiatric intensive care (PIC) unit in 2006, but made no follow-up visits. During the examination, the Veteran was found to have excellent social relationships with his wife, relatives, and members of his church. The examiner noted that PTSD symptoms were not present at the time of the examination, but added that the Veteran did have difficulty falling asleep. The examiner concluded that the Veteran met the DSM-IV stressor criteria for PTSD, but failed to meet the Axis I diagnosis of PTSD under DSM-IV. The examiner stated that the reliving experience and avoidant behavior symptoms were not exhibited. He further concluded that no other mental disorder, to include anxiety and depression, was present during the examination. While the examiner noted the "many medical conditions" experienced by the Veteran, he stated that the Veteran did not have a mental disorder. He added that the Veteran has occasional anxiety, frustration, and irritability, mild symptoms and some social difficulties, but that he generally functioned well. In a September 2011 VA treatment note, the clinician concluded that although the Veteran experienced traumatic events during his service sufficient to satisfy the DSM-IV in-service stressor criteria, he did not meet the persistent avoidance of stimuli associated with trauma or the numbing of general responsiveness criteria. The Veteran reported episodes of fears, anxiety, and flashbacks, sleeping difficulties, hypervigilance, sadness, and concentration difficulties. However, the clinician did note a diagnosis of anxiety, but did not comment as to its nature or etiology. The Veteran underwent a VA examination in February 2012 in which the Veteran was found not to have a mental condition that was at least as likely as not related to service. The examiner indicated that the Veteran met the DSM-IV stressor criteria for PTSD, but did not meet the DSM-IV symptoms criteria for a diagnosis of PTSD, as the reliving experience and avoidant behavior symptoms were not found. The examiner noted the Veteran's many medical conditions and physical limitations, including peripheral neuropathy. He also noted the Veteran's occasional anxiety, insomnia, frustration, and irritability. The examiner asserted that the Veteran's complaints centered mostly upon motion skills loss, severe medical conditions, and age-related frustration. The examiner opined that the occurrence of a lone psychiatric visit in 1967 was not synonymous with a full mental disorder. He added because the Veteran's single psychiatric evaluation resulted in no residual and continuity of symptomatology, service connection was not in order. The examiner concluded that the Veteran did not have a psychiatric disorder that was at least as likely as not proximately due to service or a service-connected condition. The examiner further concluded that the Veteran's currently diagnosed anxiety disorder was not secondarily related to his service-connected diabetes mellitus, stating that there was no medical literature indicating a physiological consequence between diabetes mellitus and an anxiety disorder. A May 2012 treatment note from Dr. Juarbe, the Veteran's private psychiatrist, noted a diagnosis of PTSD. However, the treatment did not include a complete mental status examination. The Veteran participated in a hearing at the RO in October 2013 before a Decision Review Officer (DRO). During the hearing, Dr. Juarbe testified that the Veteran lives constantly under a state of anxiety and with fears. He stated that the Veteran regularly awakes at night out of fear of enemy attack, and to this day he is unable to eat Chinese food. Dr. Juarbe testified that the Veteran has suicidal thoughts. The Veteran's wife testified that she wakes at night along with her husband. The Veteran declined to make a statement, which Dr. Juarbe opined to itself be a symptom of the Veteran's PTSD. The Veteran underwent a VA examination in November 2013 in which the examiner noted that he did not have a diagnosis of PTSD which conformed to the DSM-IV criteria. The examiner noted a diagnosis of anxiety disorder NOS and assigned the Veteran a Global Assessment of Functioning (GAF) score between 65 and 70. The Veteran reported witnessing the death of three friends in 1965 during combat. The examiner opined that while the Veteran meets the DSM-IV criteria for in-service stressors, the claimed condition was less likely than not incurred in or caused by service or a service-related injury, as the Veteran did not have a diagnosis of PTSD. The examiner also concluded that the Veteran's anxiety disorder was not related to service, as there was no evidence whatsoever of continuity of symptomatology. The Veteran underwent a VA examination in October 2015 in which the examiner concluded that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran's 1967 diagnosis of anxiety NOS but opined that there is no continuity of symptomatology. Additionally, the examiner concluded that the Veteran did not meet the minimal requirements for a PTSD diagnosis under the DSM-V criteria. Specifically, the examiner stated that the Veteran did not meet the "persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness criteria." The examiner found there to be no direct nexus between the Veteran's active service and his claimed condition, nor a secondary relation between the Veteran's claimed condition and a service-connected condition. After a Board remand, a November 2016 VA examination addendum was conducted. The examiner clarified that the October 1967 anxiety reaction diagnosis was an older terminology served for a singular episode with a specific stressor. The examiner also noted a 1967 diagnosis of "psychophysiologic GI reaction," adding that it was an unspecific old terminology relating gastrointestinal track symptoms to anxiety. The examiner opined that "anxiety reaction" and "psychophysiologic GI reaction" both related to the gastrointestinal track, not to any in-service anxiety or nervous disorder. Finally, the examiner indicated that while the first anxiety symptoms related to the GI track were in 1966-1967, the record was silent as to anxiety symptoms until 2006, some 40 years after discharge from service. Thus, the examiner concluded that the Veteran's anxiety disorder was less likely than not incurred in or aggravated as a result of service. The Board notes that the only medical opinion indicating that the Veteran has a diagnosis of PTSD is from a May 2012 treatment note of the Veteran's private psychiatrist. However, the treatment note offers no explanation or rationale for the diagnosis, and does not use the DSM-IV or DSM-V criteria in reaching the diagnosis. On the other hand, the January 2011, February 2012, November 2013, and October 2015 examinations all concluded that the Veteran did not have a diagnosis of PTSD than conformed to the DSM criteria. Rather, the VA examinations tended to find that, although the Veteran experienced combat stressors while in Vietnam, the Veteran appeared to be a well-adjusted individual who has been able to maintain social and familial relationships, was not nervous, and did not appear to have any symptoms of PTSD whatsoever. While the Veteran does not have a PTSD diagnosis that conforms to the DSM criteria, the evidence of record is inadequate as to whether the Veteran's depression and anxiety are etiologically related to service. Specifically, the examinations do not opine as to whether the Veteran has a current diagnoses of depression, and if so, whether the depression was directly related to service, aggravated by service, or secondarily related to a service-connected condition. Regarding the Veteran's diagnosed anxiety, while the February 2012 examiner opined that the condition was not related to the Veteran's diabetes mellitus, no examiner has opined as to whether the condition is secondarily related to any of the Veteran's other service-connected conditions. Additionally, while the November 2016 examiner opined that the anxiety was not aggravated by service, no adequate rationale was provided. As such, a remand is warranted to determine the nature and etiology of any currently diagnosed depression or anxiety conditions. 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). Expedited handling is requested.) 1. Attempt to obtain and associate with the claims file any outstanding VA or private medical evidence pertaining to the Veteran's claims. If no such records exist or cannot be obtained, the claims file should be documented accordingly. 38 C.F.R. § 3.159 (2017). 2. Obtain an addendum opinion from the November 2015 examiner, or another examiner with appropriate expertise. The purpose of the addendum opinion is to determine the nature and etiology of the Veteran's right inguinal hernia. The claims file and a copy of this remand must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. The examiner must review all medical evidence associated with the claims file and should then address the following question: Is it at least as likely as not (50 percent or greater) that the right inguinal hernia was aggravated (i.e. permanently made worse beyond the natural progression of the disability) by a service connected disability, to include the left inguinal hernia? Why or why not? The examination report must include a complete rationale for any opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any current acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. 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, October 2013 hearing testimony, and the Veteran's own assertions. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. 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 current acquired psychiatric disorder(s). If any previously diagnosed psychiatric disorder is not found on examination, the examiner should address the prior diagnoses of record and indicate whether they may have resolved or been misdiagnosed. For each diagnosis identified other than PTSD, the examiner should state whether it is at least as likely as not that any acquired psychiatric disorder(s) manifested in or is otherwise related to the Veteran's military service, including any symptomatology therein. The examiner should also state whether it is at least as likely as not that any acquired psychiatric disorder(s) is either caused by or aggravated by his service-connected conditions. 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 conclusion is so evenly divided that it is as medically sound to find in favor of a certain 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 (2017), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs