Citation Nr: 18148786 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-06 303 DATE: November 8, 2018 ORDER The request to reopen the finally disallowed claim of entitlement to service connection for depression is granted. REMANDED The issue of entitlement to service connection for a neck condition. The issue of entitlement to service connection for a right hip condition. The issue of entitlement to service connection for a right knee condition. The issue of entitlement to service connection for a heart condition. The issue of entitlement to service connection for gastroesophageal reflux disease (GERD). The issue of entitlement to service connection for an acquired psychiatric disorder, to include depression and post-traumatic stress disorder (PTSD). The issue of entitlement to an increased rating for thoracic spine traumatic arthritis (“back disability”). The issue of entitlement to special monthly compensation (SMC) based on aid and attendance. FINDINGS OF FACT 1. In a June 1995 rating decision, the RO denied a claim of entitlement to service connection for depression. No timely appeal was received by VA, nor was any new and material evidence submitted within the applicable appeal period. 2. Additional evidence received since the RO’s June 1995 rating decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim of entitlement to service connection for depression and raises a reasonable possibility of substantiating the claim of entitlement to service connection for depression. CONCLUSIONS OF LAW 1. The June 1995 rating decision is final as to the claim of entitlement to service connection for depression. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for depression. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to May 1986, from July 1986 to March 1988, and from May 1988 to May 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied entitlement to service connection for a heart condition, a neck condition, PTSD, a right knee condition, a right hip condition, GERD, and depression; continued a noncompensable rating for the Veteran’s service-connection back disability; and denied entitlement to SMC. The Veteran timely perfected an appeal to the rating decision. See April 2015 Notice of Disagreement; January 2016 Statement of the Case; February 2016 VA Form 9. The issue of entitlement to service connection for depression was previously denied in June 1995. The Board acknowledges that the RO reopened and denied the Veteran’s claim on the merits. Despite the determination reached by the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen the Veteran’s claim. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The issue of entitlement to service connection for an acquired psychiatric disorder has been recharacterized as reflected above given the nature of the Veteran’s claim and the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim pursued by a claimant includes any diagnosis that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). In a July 2015 rating decision, the RO denied entitlement to service connection for a brain atrophy, erectile dysfunction, irritable bowel syndrome, hypertension, sleep apnea, and tinnitus. In April 2016, the Veteran filed a timely notice of disagreement (NOD) with that decision. When a NOD has been filed with regard to an issue, and a statement of the case (SOC) has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction (AOJ) for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). However, a review of the claims file shows that the RO has acknowledged receipt of the NOD and is actively developing that claim. See June 2016 Correspondence. As such, this situation is distinguished from Manlincon where a NOD had not been recognized. Accordingly, the Board declines to exercise jurisdiction over those claims for Manlincon purposes as no such action on the part of the Board is warranted at this time. New and Material Evidence The Veteran’s claim of entitlement to service connection for depression was previously denied, and the Veteran seeks to reopen the claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it would not be enough to convince the Board to grant a claim. The Veteran initially filed a claim of entitlement to service connection for depression in June 1994. In a June 1995 rating decision, the RO denied the claim on the basis that the evidence failed to show that depression was related to service. The Veteran was notified of the decision and his appellate rights by a letter dated later that month. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision. The June 1995 rating decision therefore became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. Relevant evidence of record at the time of the RO’s June 1995 rating decision included the Veteran’s service treatment records and a VA examination report. Based on this evidence, the RO concluded that the Veteran’s did not have depression due to service and denied the Veteran’s claim for service connection. In November 2012, the Veteran requested that his claim of entitlement to service connection for depression be reopened. Relevant additional evidence received since the RO’s June 1995 rating decision includes VA and private mental health treatment records treatment records and lay statements from the Veteran regarding in-service and post-service psychiatric symptoms, as well as his assertion that his depression is secondary to service-connected disabilities. This evidence was not previously on file at the time of the RO’s June 1995 decision; thus, it is new. Furthermore, this evidence is material because it reflects a current psychiatric disability and it raises an alternative theory of entitlement. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Accordingly, the claim of entitlement to service connection for depression is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The underlying claim is addressed further in the Remand section below. REASONS FOR REMAND Outstanding Records The record reflects that there may be relevant VA treatment records that have not been associated with the claims file. In this regard, the RO obtained VA treatment records dated from February 2001 to October 2018. However, a November 2012 VA treatment record reflects that the Veteran was treated at the El Paso/Las Cruces VA Medical Center (VAMC) in 1997 (paroxysmal atrial tachycardia, traumatic arthropathy) and 1998 (arthritis). Similarly, a December 2013 VA examiner referenced VA thoracic spine x-rays from July 1997. Upon remand, the AOJ should obtain all outstanding VA treatment records documenting treatment for the issues on appeal, including records dated from prior to February 2001, as well as any current VA treatment records dated from October 2018 to the present. 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board’s decision, whether or not filed in the appellant’s claims folder, are in the constructive possession of the Board and must be considered). Additionally, the record indicates that there may be relevant Vet Center records not associated with the claims file. In this regard, a February 2014 VA treatment record shows that the Veteran reported receiving treatment at the Flagstaff Vet Center. However, there are no Vet Center records associated with the claims file. Vet Center records should be obtained on remand. See Dunn v. West, 11 Vet. App. 462, 466 (1998) (holding that Vet Centers are considered VA facilities for the purposes of the duty to assist in obtaining records). The record also indicates that there may be Social Security Administration (SSA) records not associated with the claims file. In this regard, a June 2018 SSA inquiry shows that the Veteran has been receiving SSA disability benefits since 2012. There is no indication in the claims file that SSA records have been requested or obtained. When VA has actual notice of the existence of relevant SSA records, the duty to assist includes requesting those records from the SSA. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C. § 5103A when “there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits”). Because SSA records are potentially relevant to the Board’s determination in this case, VA must attempt to obtain and consider those records. Therefore, on remand, the Veteran’s complete SSA records should be obtained. Service Connection The Veteran contends that his neck condition is related to in-service injuries. The evidence of record substantiates a current diagnosis of neck sprain. See May 2012 Private Treatment Record. Service treatment records show that the Veteran reported neck pain after a motor vehicle accident in January 1994. Accordingly, the Veteran should be scheduled for a VA examination to determine the nature and etiology of his neck condition. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The Veteran contends that he has a heart condition that had its onset in service. Service treatment records show evaluations for chest pain in November 1988 and May 1991. A January 1994 ECG showed sinus bradycardia. Post-service, a December 2011 private treatment record shows that the Veteran reported a long history of palpitations, and a July 2012 private treatment record shows an assessment of “possible paroxysmal supraventricular tachycardia.” A November 2012 VA treatment record shows a diagnosis of paroxysmal tachycardia. As there is a current diagnosis, in-service incidents, and an indication that the current disability may be related to service, the Veteran should be scheduled for a VA examination to determine the nature and etiology of his heart condition. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The Veteran contends that his GERD had its onset in service, or, alternatively, is caused by medications he takes for his service-connected back disability. To date, the Veteran has not been afforded VA examinations with regard to this issue. As such, on remand, the Veteran should be provided with an examination in order to obtain opinions as to whether the Veteran’s currently diagnosed GERD is at least as likely as not related to service or caused by or aggravated by a service-connected disability. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran also contends that he has an acquired psychiatric disorder related to service. Service treatment records show that the Veteran was treated for an acute anxiety disorder in June 1985. Post-service treatment records reflect that the Veteran has been diagnosed with PTSD and depression based, in part, on his reports of intrusive thoughts about his time in service. See February 2001 VA Treatment Record (depression since military; saw upsetting things in Grenada); July 2013 Private Treatment Record (PTSD diagnosis). The Veteran also contends that his depression is secondary to his service-connected back disability. See April 2014 Claim; see also February 2014 VA Treatment Record (major depressive disorder exacerbated by spine injury and chronic pain). The Veteran was afforded a VA examination in December 2013. The examiner indicated that the Veteran’s symptoms did not meet the full criteria for a diagnosis of PTSD; however, the examiner did indicate that the Veteran’s traumatic combat stressors related to Grenada were adequate to support a diagnosis of PTSD and was related to fear of hostile military or terrorist activity. The examiner diagnosed the Veteran with persistent depressive disorder. The examiner opined that the anxiety disorder seen in service in 1985 was not an earlier manifestation of PTSD. The examiner did not offer a nexus opinion regarding the Veteran’s diagnosed depressive disorder. As detailed above, the claims file contains lay and medical evidence of a current disorder, and an indication that the disorder may be related to service. The Board thus finds that the Veteran’s reported in-service stressors and diagnoses indicating a relationship to service is enough to meet the low threshold set forth in McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). As such, on remand, the Veteran should be afforded a VA examination to determine the nature and etiology of his acquired psychiatric disorders. Moreover, the Veteran also asserted that his depressive disorder is caused or aggravated by his service-connected back disability. Accordingly, on remand, the VA examiner should also provide an opinion as to whether the Veteran’s currently diagnosed acquired psychiatric disorder is at least as likely as not caused by or aggravated by his service-connected back disability. Increased Rating The Veteran contends that his thoracic spine disability is more severe than reflected by his noncompensable disability rating. Historically, the Veteran was granted service connection for traumatic arthritis of the thoracic spine in an April 1995 rating decision based on an incidental finding of mild degenerative changes of the thoracic spine seen on an x-ray of the Veteran’s ribs during a September 1994 C&P examination. A July 1997 VA thoracic spine x-ray showed osteoporosis and s-scoliosis (as noted above, this record is not associated with the claims file). A February 2001 VA treatment record shows that the Veteran reported mid-back pain since service. A March 2002 private treatment record shows a diagnosis of thoracic disc disease. An April 2002 private MRI of the thoracic spine showed compression fracture deformity of the T8 vertebral body and moderate degenerative disc disease. In February 2012, the Veteran was involved in a motor vehicle accident, and he was hospitalized for three days. The impression upon admission included “[m]oderate degenerative disease without evidence of acute fracture, T8 compression defect is likely chronic.” On discharge, the Veteran’s diagnoses included “[o]ld T-spine compression fracture.” A May 2012 private treatment record shows that the Veteran reported pain in his shoulder blades and cervical spine. X-rays of the thoracic spine showed thoracic spondylosis with kyphosis and compression deformity of T8 that appeared to be chronic. Another May 2012 private treatment record reflects that with respect to the thoracic spine there was “no evidence of any acute injuries noted” and that the findings with respect to the T8-T9 compression fracture and the thoracic spondylosis pre-existed the February 2012 motor vehicle accident. The Veteran was afforded a VA examination in December 2013. The Veteran reported back pain since service. His forward flexion was limited to 30 degrees and right and left lateral rotation was limited to 20 degrees each side. He was unable to perform any other ranges of motion due to pain. The examiner opined that the Veteran’s current back condition was “not likely related to the service connected back condition.” The examiner explained that the imaging performed in 1994 and 1997 did not show any compression fractures, whereas the imaging performed in 2002 was the first sign of compression fracture. The examiner also noted that the imaging in 1997 and 2002 showed osteoporosis. The examiner concluded that any injury sustained in-service was more likely related to the osteoporosis and less likely related to the compression fracture. However, the examiner also indicated that “[t]he most common cause of compression fracture is osteoporosis.” The examiner therefore opined that the Veteran’s “current back condition is likely an aggravation of the compression fracture or a severe cervicothoracic strain.” The examiner also indicated that she could not provide the current severity of the Veteran’s service-connected condition because of “the overlapping back condition of the compression fracture and the [V]eteran’s refusal to complete the full back exam.” The Board notes that when an examiner is unable to distinguish the symptoms of service-connected disability from non-service connected manifestations, all the manifestations will be considered part of the service connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here, the Board finds the December 2013 examiner’s rationale confusing with respect to whether the Veteran’s compression fracture is a continuation of his service-connected back disability. In this regard, the examiner opined that the Veteran’s osteoporosis is likely a service-connected condition and that the most common cause of compression fracture is osteoporosis. However, the examiner nonetheless opined that the compression fracture was not a service-connected condition. Moreover, the examiner’s opinion that the Veteran’s current back symptoms were due to the 2012 motor vehicle accident appears to be in conflict with the medical evidence discussed above showing that the Veteran did not have any acute thoracic spine injuries from the accident. Thus, it is unclear whether the diagnoses of osteoporosis and compression fracture represent progression of the prior service-connected diagnosis of traumatic arthritis of the thoracic spine, correction of an error in the prior diagnosis, or development of a new and separate condition. See 38 C.F.R. §§ 4.13, 4.125. Additionally, if there is a diagnosis of a disability manifesting thoracic spine symptoms that is a development of a new and separate condition, then the Veteran would have both service-connected and nonservice-connected disabilities. Accordingly, it is unclear whether the Veteran’s thoracic spine symptoms may be attributed to either his service-connected thoracic spine disability or any nonservice-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In light of the above and the length of time since the last VA examination, the Board finds that another VA examination is necessary to determine the current severity and manifestations of the Veteran’s service-connected thoracic spine disability. Finally, the Board notes that the claim of entitlement to SMC is inextricably intertwined with the service connection and increased rating issues remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). Thus, adjudication of the SMC claim is deferred. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records dated prior to February 2001 and from October 2018 to the present documenting treatment for the issues on appeal, to specifically include records from the El Paso/Las Cruces VAMC from 1997 to 1998 discussed above. Additionally, obtain all outstanding Vet Center records from the Phoenix Vet Center. If any of the records requested remain unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159 (e). 2. Send the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization in order to obtain any additional private treatment records pertinent to the claim on appeal that are not currently of record, to specifically include records of private psychiatric treatment and private cardiology treatment. All records obtained pursuant to this request must be included in the Veteran’s claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file in accordance with 38 C.F.R. § 3.159 (c)(1). 3. Request from SSA complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be documented in the claims file, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159 (e). 4. After all available records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of his neck condition. The entire claims file, to include a complete copy of this remand must be made available to and reviewed by the examiner. All indicated studies, tests, and evaluations deemed necessary should be performed. After examining the Veteran and reviewing the claims file, the examiner should render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed neck/cervical spine condition had its onset during active service or is related to any in-service disease, event, or injury, to include the in-service complaints of treatment for cervical spine pain after a 1994 motor vehicle accident. The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 5. After all available records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any and all heart conditions diagnosed proximate to, or during the pendency of, this appeal. The entire claims file, to include a complete copy of this remand must be made available to and reviewed by the examiner. All indicated studies, tests, and evaluations deemed necessary should be performed. After examining the Veteran and reviewing the claims file, the examiner should render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any heart condition diagnosed proximate to, or during the pendency of, this appeal, to specifically include paroxysmal supraventricular tachycardia, had its onset during active service or is related to any in-service disease, event, or injury, to include the in-service complaints of chest pain and in-service diagnosis of sinus bradycardia. The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 6. After all available records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of his diagnosed GERD. The entire claims file, to include a complete copy of this remand must be made available to and reviewed by the examiner. All indicated studies, tests, and evaluations deemed necessary should be performed. After examining the Veteran and reviewing the claims file, the examiner should render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the currently diagnosed GERD had its onset during active service or is related to any in-service disease, event, or injury. The examiner should also render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s GERD is proximately due to or caused by the Veteran’s service-connected back disability, to include medications taken for his back disability. If not, is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s GERD was aggravated (permanently worsened in severity beyond a natural progression) by the Veteran’s service-connected back disability, to include medications taken for his back disability? If the examiner determines that the Veteran’s GERD was aggravated by the service-connected back disability, the examiner should report the baseline level of severity of the GERD prior to the onset of aggravation. If some of the increase in severity of the GERD is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 7. After all available records have been associated with the claims file, schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology of any and all acquired psychiatric disorders diagnosed proximate to, or during the pendency of, this appeal. The entire claims file and a copy of this remand must be made available to and reviewed by the examiner, and it should be confirmed that such records were available for review. Following a review of the record and an examination of the Veteran, the examiner should render opinions as to the following: (a.) Provide diagnoses for any acquired psychiatric disorders found to be present during the pendency of this appeal. If there are different diagnoses than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record. (b.) Specifically, state whether the Veteran has a current diagnosis of PTSD. If a diagnosis of PTSD is not deemed appropriate, explain why the Veteran’s reported symptoms do not meet the diagnostic criteria for PTSD and reconcile those findings with the PTSD diagnoses in the VA treatment records. (c.) If a diagnosis of PTSD is appropriate, the examiner must identify the specific stressor(s) underlying the PTSD diagnosis and opine whether the stressor involves fear of hostile military or terrorist activity. (d.) With respect to each acquired psychiatric disorder, other than PTSD, found to be present and/or diagnosed proximate to or during the pendency of the appeal (to specifically include depression), the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disorder had onset in, was caused by, or is otherwise related to, the Veteran’s military service. In offering this opinion, the examiner must acknowledge and discuss the Veteran’s reports of symptoms in and since service. The examiner should also render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s depression is proximately due to or caused by the Veteran’s service-connected back disability. If not, is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s depression was aggravated (permanently worsened in severity beyond a natural progression) by the Veteran’s service-connected back disability? If the examiner determines that the Veteran’s depression was aggravated by the service-connected back disability, the examiner should report the baseline level of severity of the sarcoidosis prior to the onset of aggravation. If some of the increase in severity of the depression is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. In rendering the requested opinions, the examiner should consider all relevant treatment records and statements of record, to include service and personnel records, the Veteran’s statements, and VA and private treatment records. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 8. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected thoracic spine disability. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished, and the examiner is requested to report complaints and clinical findings in detail. The examiner must test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should consider the Veteran’s reports of flare-ups and portray any related functional loss in terms of additional range of motion loss. If the examiner is unable to do so, the examiner should indicate why. After review of the claims file and examination of the Veteran, the examiner should address all of the following: (a.) Describe the nature, diagnosis(es), and all symptoms of the Veteran’s thoracic spine disability. (b.) Clarify whether there are any thoracic spine diagnoses other than the diagnosis for which service-connection was originally granted, namely thoracic spine traumatic arthritis. If so, please identify all applicable thoracic spine diagnoses (to specifically include compression fracture, osteoporosis, and thoracic spondylosis) and indicate whether any change in diagnosis represents progression of a prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. (c.) For each thoracic spine condition that is a completely separate and distinct disability from the service-connected thoracic spine traumatic arthritis, the examiner is asked to opine whether it is at least as likely as not (a probability of 50 percent or greater) that the new thoracic spine condition is etiologically related to service. (d.) For each thoracic spine condition that is a completely separate and distinct disability from the service-connected thoracic spine traumatic arthritis, and that is not related to service, the examiner is asked to opine whether it is at least as likely as not (a probability of 50 percent or greater) that the new thoracic spine condition was caused or aggravated by the service-connected thoracic spine disability. If the examiner determines that the Veteran’s new thoracic spine condition was aggravated by his service-connected thoracic spine disability, the examiner should report the baseline level of severity of the new thoracic spine condition prior to the onset of aggravation. If some of the increase in severity of the condition is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. (e.) Attempt (to the extent possible) to distinguish the symptoms and manifestations of the service-connected thoracic spine disability and any completely separate and distinct thoracic spine condition. The examiner is asked to note if it is not possible to attribute the Veteran’s symptoms to each disability separately. The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 9. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran’s claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel