Citation Nr: 18155750 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-50 198 DATE: December 6, 2018 ORDER As new and material evidence has not been received, the claim for entitlement to service connection for a digestive disorder is not reopened, and therefore the appeal is denied. As new and material evidence has not been received, the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is not reopened, and therefore the appeal is denied. As new and material evidence has not been received, the claim for entitlement to service connection for chronic obstructive pulmonary disease (COPD) is not reopened, and therefore the appeal is denied. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus, type II, is denied. REMANDED Entitlement to service connection for an eye disorder, to include as secondary to service-connected diabetes mellitus, type II, or other service-connected disability, is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An August 2005 rating decision denied a claim for service connection for a digestive disorder. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. A September 2008 rating decision denied reopening claims for service connection for PTSD and COPD. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 3. Evidence received since the August 2005 and September 2008 rating decisions is cumulative and redundant of the evidence previously of record, and does not raise a reasonable possibility of substantiating the Veteran’s claim of service connection for a digestive disorder, PTSD, or COPD. 4. For the entire period covered by this claim, the Veteran’s service-connected diabetes mellitus, type II has required no more than restricted diet and oral hypoglycemic agents. CONCLUSIONS OF LAW 1. The August 2005 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). 2. The September 2008 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2007); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006). 3. New and material evidence sufficient to reopen the claim of service connection for a digestive disability has not been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. New and material evidence sufficient to reopen the claim of service connection for PTSD has not been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. New and material evidence sufficient to reopen the claim of service connection for a COPD disability has not been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 6. The criteria for the assignment of an initial disability rating in excess of 20 percent for the service-connected diabetes mellitus have not been met or approximated at any time covered by this claim. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. By way of background, in an August 2005 rating decision, the Veteran was granted service connection for diabetes mellitus, type II, with an evaluation of 30 percent effective from January 18, 2005. In the same rating decision, the Veteran was denied service connection for PTSD and a digestive disorder, and in an August 2008 rating decision, he was denied service connection for COPD. A September 2008 rating decision denied reopening the claims for PTSD and COPD. The Veteran did not appeal those denials within one year, and thus those decisions became final. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995). When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Board notes that the Veteran has not worked since approximately 1996, that he receives Social Security Disability for a variety of disorders, and that he is in receipt of a VA non-service-connected pension. In addition, the Veteran currently has a 70 percent overall disability compensation. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of TDIU is inferred by the record, and will be remanded for further development. The Board also finds that SMC is not inferred by the record, and as such will not be discussed. This appeal originally contained two additional issues: entitlement to service connection for coronary artery disease and peripheral vascular disease. In August 2016 and March 2018 rating decisions, the RO granted service connection for each, effective from September 17, 2012. As such, the issues are no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). With respect to claims to reopen, VA is further required to provide notice of the definition of new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). However, VA is no longer required to provide notice of the element or elements that were found insufficient or the information and evidence necessary to substantiate the insufficient element or elements. See 38 U.S.C. § 5103(a)(1); VAOPGCPREC 6-2014 (Nov. 21, 2014); see also Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Petition to Reopen In August 2005, VA denied a claim of entitlement for service connection for a digestive disorder, and in September 2008, denied reopening a previously denied claim for service connection for PTSD and COPD. The claims were originally denied because the evidence did not show a nexus to service. The RO reviewed the Veteran’s available service treatment records (STRs) and his statements regarding the disabilities. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following those decisions. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decisions became final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). The Veteran sought to reopen this claim in September 2011. The RO reviewed the Veteran’s available service treatment records (STRs), VA treatment records, private treatment records, and his statements regarding his digestive disorder, PTSD, and COPD. The RO reopened the claim but denied the claims for the digestive disorder, PTSD, and COPD in September 2013. The Veteran filed a notice of disagreement (NOD) in September 2013. VA issued a Statement of the Case (SOC) in August 2016. The Veteran perfected an appeal to the Board in September 2016. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as 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) (2017). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include 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. Additionally, the United States Court of Appeals for the Federal Circuit has 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 claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The evidence of record in August 2005 and September 2008 consisted of service records, including personnel and medical records, some VA treatment records, and lay statements from the Veteran. The evidence of record at that time did not establish a nexus back to service for a digestive disorder, PTSD, or COPD. Since the August 2005 rating decision for the digestive disorder and the September 2008 rating decision for the PTSD and COPD, the Veteran’s file has additional VA medical records of substantial quantity through November 2017 that have been attached to the claims file. The Board notes that while these documents are new, in that they have not previously been submitted, they are not material as they do not address a requirement of service connection that was previously denied. Specifically, these do not provide a nexus linking the Veteran’s claimed digestive disorder, PTSD, or COPD to active service, and nor do they allege an in-service injury, incident, or occurrence. No new facts were alleged in the Veteran’s September 2011 claim to reopen. No other evidence or statements from the Veteran or other evidence of private medical care was provided to the claims file. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; see also Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). As none of this evidence addresses whether the claimed digestive disorder, PTSD, or COPD was related to the Veteran’s service, the Board finds that this new evidence is not material. The Board acknowledges the Veteran’s representative and her multiple but conclusory statements asserting that the Veteran is entitled to the grant of his claims. However, the Board notes that the presentation of arguments based on evidence already of record at the time of the previous decision does not constitute new evidence. See Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) (“The presentation of new arguments based on evidence already of record at the time of the previous decision does not constitute the presentation of new evidence.”). Moreover, until a claim is reopened, the duty to assist, including any duty to provide an examination, is not for application. As new and material evidence has not been received, the benefit-of-the-doubt doctrine is not for application. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (benefit-of-the-doubt doctrine is doctrine is not applicable to applications to reopen unless the threshold burden of submitting new and material evidence has been met). The evidence received since 2008 is either cumulative or redundant of the evidence of record at the time of the last final denial, and does not raise a reasonable possibility of substantiating the claim. The evidence received since the August 2005 and September 2008 rating decisions is therefore not new and material, and the requirements have not been met to reopen the Veteran’s claims for service connection for a digestive disorder, PTSD, or COPD. Therefore, reopening of the claims for service connection for a digestive disorder, PTSD, or COPD are denied. See 38 C.F.R. § 3.156(a). Increased Schedular Rating for Diabetes Mellitus Type II Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity.” See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence and Analysis for Diabetes Mellitus, Type II Increased Rating Claim The Veteran’s service-connected diabetes mellitus currently is evaluated as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. A 10 percent rating is assigned under Diagnostic Code 7913 for diabetes mellitus manageable by restricted diet only. A 20 percent rating is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A maximum 100 percent rating is assigned for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Id. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes will be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Non-compensable complications are considered part of the diabetic process. Note (2) to DC 7913 states that, when diabetes mellitus has been diagnosed conclusively, a glucose tolerance test should be not requested solely for rating purposes. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Notes (1), (2) (2017). “Regulation of activities” has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining “regulation of activities,” as used by VA in Diagnostic Code 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). The Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 20 percent for his diabetes mellitus. An August 2005 VA examination for his diabetes mellitus, type II indicated the Veteran was on a restricted diet and takes an oral hypoglycemic medication (Metformin twice per day). The Veteran’s activities were not restricted due to his diabetes mellitus. The Veteran had occasional hypoglycemic reactions but never had ketoacidosis. The Veteran did not require insulin at the time of the examination. A July 2008 VA examination noted the Veteran’s restricted diet and continuing oral hypoglycemic medication. As previous, the Veteran’s activities were not restricted, and insulin was not prescribed. A June 2016 VA examination report notes no change from the previous examination findings noted above. The examiner reported no episodes of ketoacidosis or hypoglycemic reactions in the previous 12 months. A June 2017 VA examination noted the continuing use of oral hypoglycemic agents along with restricted diet to manage the Veteran’s diabetes. The examiner reported no episodes of ketoacidosis or hypoglycemic reactions in the previous 12 months. There is no medical evidence to the contrary. A higher evaluation of 40 percent is not warranted unless there is diabetes requiring insulin, restricted diet, and regulation of activities. Per VA medical examinations noted above, the Veteran has never required insulin to treat his diabetes. Accordingly, the preponderance of the evidence is against the claim for a higher rating at any time covered by this claim. (Continued on next page.) REASONS FOR REMAND 1. Entitlement to service connection for an eye disorder is remanded. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has claimed entitlement to service connection for an eye disorder, and the claim was denied direct service connection in a September 2013 rating decision for lack of an in-service injury or occurrence and nexus. However, the Board notes that multiple VA medical professionals have noted eye problems beginning in July 2008, where an examination for diabetes noted “progressive loss of vision.” The most recent eye consultation in November 2017 recommended a complete eye examination, to include as possibly associated with the Veteran’s service-connected diabetes mellitus. Thus, the original claim for service connection for an eye disorder must be expanded to include the possibility of secondary service connection due to the Veteran’s service-connected diabetes mellitus, type II or other service-connected disability. The Veteran has never had a VA compensation and pension examination specific to his claimed eye disorder. Therefore, a remand is required to obtain the requisite VA examination and opinion for service connection for the claimed eye disorder, to include as due to or aggravated by other service-connected disabilities. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. As mentioned earlier in this decision and remand, the Board finds that the issue of TDIU is inferred by the record. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also notes that the Veteran receives Social Security Disability compensation. Because the outcome of the remand could materially affect the Veteran’s ability to meet such schedular criteria, the TDIU claim is inextricably intertwined with the remanded eye disorder claim and therefore must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Schedule the Veteran for a VA examination with an ophthalmologist or optometrist to determine the nature and etiology of the Veteran’s eye disorder, to include as secondary from other service-connected disability. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: a) Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran has an eye disability that is related to his active duty service, or are otherwise related to any in-service disease, event, or injury? b) If not, is it at least as likely as not (probability of fifty percent or greater) that the eye disability was caused by the Veteran’s diabetes mellitus, type II, or any other service-connected disability? c) If the diabetes or other service-connected disability did not cause the eye disability, is it at least as likely as not (probability of fifty percent or greater) that eye disability was aggravated (an increase in severity) by other service-connected disability? d) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the eye disability by the service connected disability. A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions 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). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issues on appeal as noted above, to include the TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel