Citation Nr: 1033910 Decision Date: 09/10/10 Archive Date: 09/21/10 DOCKET NO. 05-41 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder to include PTSD, an anxiety disorder, depressive disorder, and bipolar disorder. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for cardiac arrhythmia. 5. Entitlement to service connection for a heart disorder, claimed as hypertension and cardiac arrhythmia due to exposure to herbicides, chemical toxin exposure in service, and secondary to radiation treatment for his service-connected Hodgkin's disease. 6. Entitlement to service connection for peripheral neuropathy, right lower extremity, claimed as due to exposure to herbicides, chemical toxin exposure in service, and secondary to radiation treatment for his service-connected Hodgkin's disease. 7. Entitlement to service connection for peripheral neuropathy, left lower extremity, claimed as due to exposure to herbicides, chemical toxin exposure in service, and secondary to radiation treatment for his service-connected Hodgkin's disease. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his friend ATTORNEY FOR THE BOARD A. M. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to January 1973. These matters come before the Board of Veterans' Appeals (BVA or Board) from March 2005 (cardiac arrhythmia and hypertension), April 2006 (peripheral neuropathy, lower extremities), and September 2008 (PTSD) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified before the undersigned in May 2010. A transcript of the hearing is of record. With respect to the Veteran's claim for PTSD, the Board notes that recent case law emphasizes that a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Given the holding in Clemons, the Board has recharacterized the issue to the broader issue of entitlement of service connection for an acquired psychiatric disability, as is reflected on the cover page. In doing so, the Board acknowledges that a change in diagnosis or the specificity of the claim must be carefully considered in determining whether the claim is based on a distinct factual basis. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In Boggs, the United States Court of Appeals for the Federal Circuit found that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. However, the United States Court of Appeals for Veterans Claims (Court) clarified in Velez v. Shinseki, 23 Vet. App. 199 (2009), that the focus of the analysis must be whether the evidence truly amounted to a new claim based upon a different diagnosed disease or whether the evidence substantiates an element of a previously adjudicated matter. In the present case, the prior claim described above was specifically for PTSD, the very claim for which the Veteran now seeks service connection. In other words, although the Board is broadening the scope of the claim, because the present claim turns upon the same diagnoses and factual bases as were considered in prior decisions, the threshold question of whether new and material evidence had been submitted must be addressed. The Board notes that the Veteran also perfected appeals with respect to service connection claims for bilateral hearing loss and tinnitus. In August 2007, the RO granted service connection for bilateral hearing loss (0 percent effective from September 24, 2004) and tinnitus (10 percent from September 24, 2004). Because he has not appealed the ratings or effective dates assigned to these disabilities, no claim regarding these disorders is in appellate status at this time. The issues of entitlement to service connection for an acquired psychiatric disorder, a heart disorder and peripheral neuropathy of the right and left lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a decision dated in August 1994, the RO denied service connection for PTSD based on the finding that there was no current diagnosis; the Veteran did not appeal the August 1994 decision within one year of being notified. 2. In a decision dated in August 1994, the RO denied service connection for hypertension and cardiac arrhythmia based on the findings that there was no treatment for either of these disorders in service, or within one year of separation from service; the Veteran did not appeal the August 1994 decision within one year of being notified. 3. The evidence received since the August 1994 RO decision raises a reasonable possibility of substantiating the claims of entitlement to service connection for an acquired psychiatric, hypertension, and cardiac arrhythmia disorders. CONCLUSIONS OF LAW 1. The August 1994 rating decision, which denied the Veteran's claim of entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002), 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2009). 2. New and material evidence has been presented since the August 1994 RO decision denying service connection for PTSD; thus, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 3. The August 1994 rating decision, which denied the Veteran's claim of entitlement to service connection for hypertension is final. 38 U.S.C.A. § 7105 (West 2002), 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2009). 4. New and material evidence has been presented since the August 1994 RO decision denying service connection for hypertension; thus, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 5. The August 1994 rating decision, which denied the Veteran's claim of entitlement to service connection for cardiac arrhythmia is final. 38 U.S.C.A. § 7105 (West 2002), 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2009). 6. New and material evidence has been presented since the August 1994 RO decision denying service connection for cardiac arrhythmia; thus, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. With respect to the claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the Board finds sufficient evidence to reopen the Veteran's claims for PTSD, hypertension, and cardiac arrhythmia. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. II. New and Material Evidence Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). When making determinations as to whether new and material evidence has been presented, the RO must presume the credibility of the evidence. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" as evidence not previously submitted and "material" as evidence related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Historically, the Veteran initially filed claims of entitlement to service connection for PTSD, hypertension, and cardiac arrhythmia in September 1993. The RO, in August 1994 denied the Veteran's claims for PTSD based on the finding that there was no current diagnosis of this disorder. His claim for hypertension and cardiac arrhythmia were essentially denied on the basis that there had been no treatment for either disorder in service, nor treatment within one year of separation from service. The Veteran did not appeal that decision within a year, and it became final. The evidence of record at the time of the August 1994 rating decision included service treatment records, December 1993 VA examinations, and private treatment records. The Veteran filed petitions to reopen the claims of entitlement to service connection for hypertension and cardiac arrhythmia and PTSD, respectively, September 2004 and June 2008. In March 2005, the RO denied the Veteran's claims for hypertension and cardiac arrhythmia on the basis that new and material evidence had not been demonstrated. The RO denied the Veteran's claim for PTSD in a September 2008 rating decision on the basis that new and material evidence had not been demonstrated. In November 2009, a Decision Review Officer reopened the PTSD claim but denied it on the merits. Because the Board has the jurisdictional responsibility to consider whether it was proper to reopen the claim, regardless of the RO's determination on the question of reopening, the Board will determine whether new and material evidence has been received and, if so, consider entitlement to service connection on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). He appealed. The evidence added to the record since the August 1994 RO decision, includes VA treatment records, private treatment records, testimony provided at a May 2010 BVA hearing, and various letters from private treating physicians. With respect to his PTSD claim, the Board finds that current private treatment records reference a diagnosis of PTSD. See May 2010 private treatment records. Given that a current PTSD diagnosis has been documented, and that the Veteran's private treating psychiatrist has indicated that there is a relationship between the Veteran's diagnosis and trauma experienced during service, a reasonable possibility of substantiating his claim for PTSD is raised. See May 2010 statement from Dr. J. E. G. With respect to his hypertension and cardiac arrhythmia claims, the Board finds that the pertinent evidence, received subsequent to the August 1994 RO decision, includes a January 2005 private medical opinion. Specifically, Dr. J. T., indicated that the Veteran was diagnosed with hypertension and arrhythmia, among several other disorders. She opined that "many, if not all, of his health disorders are more likely to have been caused by exposure to various carcinogens; including but not limited to Dioxins (Agent Orange) and other herbicides/pesticides and products containing the chemical Benzene." Additionally, with respect to his cardiac arrhythmia claim, the Board has considered a May 2010 private medical opinion. Specifically, Dr. M.V.T., indicated that the Veteran's cardiac arrhythmia "was caused by exposure to trichloroethylene (TCE) and/or tetrachloroethylene (PCE) and/or benzine while on active duty at Marine Corps Base Camp Lejeune in North Carolina and Camp Pendleton in California." Given the private physicians' medical opinions, a reasonable possibility of substantiating his claims is raised. The Board finds that this is new and material evidence to reopen the Veteran's claims. Therefore, his PTSD, hypertension, and cardiac arrhythmia claims will be reopened and remanded as discussed in the Remand portion of this decision. ORDER New and material evidence to reopen a claim of entitlement to service connection for PTSD has been received, to this extent, the appeal is granted. New and material evidence to reopen a claim of entitlement to service connection for hypertension has been received, to this extent, the appeal is granted. New and material evidence to reopen a claim of entitlement to service connection for cardiac arrhythmia, to this extent, the appeal is granted. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Acquired Psychiatric Disorder- The Veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD, an anxiety disorder, a depressive disorder, and bipolar disorder, is based on various stressors, including allegations of personal assault in service. Specifically, the Veteran asserts that (1) he was beaten and sexually assaulted after being sent to the brig (sometime between September and December 1972), and (2) a mortar or grenade attack on September 7, 1972. See May 2010 BVA hearing transcript. Additional stressors alleged include (i) being a test subject to experiments near the coast of California at various times, (ii) participation in combat support operations off the coast of Vietnam, (iii) exposure to chemicals at Area 21, (iv) exposure to racial tension at Camp Hensen, (v) race riots in September 1972 while stationed in the USS Sumter LST 1181, and (vi) he was harassed by instructors during Regimental Training at Camp Lejeune. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). In addition to the laws and regulations outlines above, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) medical evidence establishing a link between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2009). The Board notes that a recent regulatory change has eliminated the requirement for corroboration of a claimed in-service stressor if it is related to the Veteran's fear of hostile military or terrorist activity. It is necessary that a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. See 75 Fed. Reg. 39,843 - 39852 (July 13, 2010). With respect to the Veteran's allegations, this regulatory change is only applicable to his alleged stressor of the September 1972 mortar attack because this incident relates to "fear of hostile military or terrorist activity." The Board notes that the Veteran's service treatment records do not demonstrate treatment for, or complaints associated with psychiatric problems. At his January 1973 separation examination, his psychiatric clinical evaluation was normal. There is also no clear indication in the Veteran's personnel records that a personal assault occurred. However, the Board notes that service personnel records demonstrate that the Veteran received an Article 91 violation in January 1970 for disrespectful language toward his superior. Further, a Special Court Martial was held in December 1972 where the Veteran was accused of violating of Article 80 and Article 134. He was found not guilty on both charges. However, he states that he was physically and sexually assaulted during his period of incarceration. The Veteran's uncorroborated testimony, with respect to his personal assault(s) is not sufficient to verify the stressors set forth in this case. The Board recognizes that the present case falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran alleges. See, e.g., Patton v. West, 12 Vet. App. 272 (1999). In any event, the Board acknowledges that the relevant regulations stipulate that, if a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran's service records may corroborate his or her account of the stressor incident. 38 C.F.R. § 3.304(f)(5) (2010). Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault(s) is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The Veteran was provided with notice regarding the development of his claim through 'alternative sources' of information in April 2009. In response thereto, he provided an undated statement from F.E.H., reportedly his former Master Gunnery Sergeant, who recalled seeing the Veteran after being in the "brig" and witnessing his back being in a bad condition. The Veteran also submitted photographs of an individual's neck area that is bruised. He maintains that he is the individual in the photographs. The Board has also reviewed a May 2010 private treating physician's statement that the Veteran's PTSD is "a direct result of trauma" during service. The private physician additionally opined that his bipolar disorder was "100% exacerbated by trauma he sustained while serving in the US Marines from February 1969 to January 1973." Also of record is a June 2007 psychiatric report that lists the Veteran's stressors of coming under mortar fire during a beach landing and serving the waters off of Vietnam and concludes that his diagnosis of PTSD is due to in-service traumatic events. While probative, the diagnosis and assessments made in the June 2007 and May 2010 statements/reports are not in line with the requirements under the revised 38 C.F.R. § 3.304(f). It is necessary that a VA examiner confirm that the claimed stressor(s) are adequate to support a diagnosis of PTSD. Nevertheless, the Board finds the above treating practitioner's statements are an "indication" that his psychiatric disorder (PTSD) may be associated with service, but that there is insufficient competent evidence on file for the VA to make a decision on the claim. Notwithstanding the above, the Board has considered a January 2005 private treating physician's statement that the Veteran has anxiety, in addition to various other disorders. She opined that "many, if not all, of his health disorders are more likely to have been caused by exposure to various carcinogens; including but not limited to Dioxins (Agent Orange) and other herbicides/pesticides and products containing the chemical Benzene." The Board has additionally considered a May 2010 private treating physician's statement that it is "at least as likely as not that [the Veteran's] . . . PTSD . . . [was] caused by exposure to trichloroethylene (TCE) and/or tetrachloroethylene (PCE) and/or benzene while on active duty at Marine Corps Base Camp Lejeune in North Carolina and Camp Pendleton in California." No rationales were provided by either of these physicians. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). Therefore, the Veteran should be scheduled for a VA psychiatric examination by a medical professional with appropriate expertise to determine the likelihood that the alleged personal assaults during service occurred, and if so, whether any current acquired psychiatric disorder is related to a personal assault incurred in service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Additionally, an opinion should be rendered as to whether the Veteran's acquired psychiatric disorder is related to any incident of service. Hypertension, Cardiac Arrhythmia, Peripheral Neuropathy- With respect to the Veteran's hypertension and arrhythmia, the Board has considered the January 2005 private treating physician's statement that the Veteran had hypertension and arrhythmia, in addition to various other disorders. She opined that "many, if not all, of his health disorders are more likely to have been caused by exposure to various carcinogens; including but not limited to Dioxins (Agent Orange) and other herbicides/pesticides and products containing the chemical Benzene." With respect to his cardiac arrhythmia and peripheral neuropathy claims, the Board has also considered a May 2010 private treating physician's statement that it is "at least as likely as not that [the Veteran's] . . . peripheral neuropathy . . . and arrhythmias were caused by exposure to trichloroethylene (TCE) and/or tetrachloroethylene (PCE) and/or benzene while on active duty at Marine Corps Base Camp Lejeune in North Carolina and Camp Pendleton in California." As previously discussed, no rationales were provided by either of these physicians. The Board finds the above treating practitioner's statements are an "indication" that his cardiac and neurological disorders may be associated with service, but that there is insufficient competent evidence on file for the VA to make a decision on the claim. Additionally, it is unclear whether the Veteran's heart disorders and peripheral neuropathy are associated with his now service-connected Hodgkin's disease. As such, the Board finds that VA examinations are required under McLendon v. Nicholson, 20 Vet. App. 79 (2006) to determine the extent of his cardiac and neurological disorders and whether these disorders are proximately due to or the result of his service-connected Hodgkin's disease, or are otherwise related to service. Further, the Board notes that the Veteran testified at his May 2010 hearing that he had been diagnosed with ischemic heart disease. See BVA hearing T. page 12. A review of the available records did not confirm this diagnosis. As such, the VA examiner is additionally asked to determine whether or not the Veteran suffers from this disorder. If such a diagnosis is rendered, the RO should consider recent changes made to VA regulations pertaining to the presumption of service connection for herbicide exposure and ischemic heart disease. In addition to the foregoing, the Board notes that there are additional deficiencies that can be cured in this remand. Social Security Administration (SSA) Records- A May 2008 decision from the SSA indicates that the Veteran was awarded disability benefits beginning in January 2005 in reference to disabilities including, cardiac arrhythmias, status post Hodgkin's disease, and a depressive disorder with anxiety and occasional panic attacks. A copy of the records underlying that decision has not been obtained. VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain. 38 U.S.C.A § 5103A(c)(3); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006). Indeed, the Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108- 09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The medical records related to the SSA's disability determination are clearly relevant and must be obtained Private Medical Records- The Veteran submitted a list of his treating physicians at his May 2010 BVA hearing. A review of the records indicates that although there are some treatment records from the Psychiatry Clinic in San Luis Obispo, CA and from the Veterans Counseling Clinic in Visalia, CA, it appears that there are additional treatment records which have not yet been associated with the claims file. As such, all available records associated with the Veteran's psychiatric treatment, from the Psychiatry Clinic and the Veterans Counseling Clinic, should be obtained on remand. VA Treatment Records- The Board observes that the Veteran receives treatment through the Santa Maria Community Based Outpatient Clinic (CBOC) and Tulare CBOC. The most recent treatment records contained in the claims file are dated in December 2009 (Santa Maria CBOC) and October 2007 (Tulare CBOC). However, although some records are available from October 2007, it appears that there may be outstanding records from this facility beginning as early as October 2005. While on remand, any treatment records from such facilities dated from December 2009 (Santa Maria CBOC) and from October 2005 (Tulare CBOC) to the present should be obtained. (CONTINUED NEXT PAGE) Accordingly, the case is REMANDED for the following actions: 1. Obtain SSA records, including the medical evidence used to determine disability eligibility. Any negative search result should be noted in the record. 2. After obtaining the appropriate releases, obtain all available records from the Psychiatry Clinic in San Luis Obispo, CA and from the Veterans Counseling Clinic in Visalia, CA regarding the Veteran's psychiatric treatment. Any negative search result should be noted in the record. 3. Obtain VA outpatient treatment records from the Santa Maria CBOC beginning in December 2009, and from the Tulare CBOC beginning in October 2005. Any negative search result should be noted in the record. 4. Following the development set forth in paragraphs 1-3 of this REMAND, schedule the Veteran for a VA psychiatric examination. Following an examination of the Veteran, review of the relevant service records and other evidence in the claims file, the psychiatrist is asked to opine: A) Whether it is at least as likely as not (a 50 percent probability of greater) that the Veteran's behaviors in service, including any disciplinary problems, are consistent with his claimed in-service personal assault(s) of being beaten and sexually assaulted and harassed. In offering an opinion as to whether any behavior changes/disciplinary problems indicate that the Veteran was assaulted in service, the psychiatrist should discuss any behavior changes before and after the alleged personal assault(s). B) If the psychiatrist is of the opinion that behavior changes in service represent that a personal assault occurred, the examiner is requested to offer an opinion, with full supporting rationale, as to whether the Veteran has PTSD meeting the criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994), and, if so, C) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's PTSD is the result of any in-service claimed events - being physically and sexually assault (if Part A is answered in the affirmative), being exposed to "chemicals" during active service, being present during race riots and racial tensions, being harassed during basic training, being incarcerated for crimes that he was eventually found not guilty, and participating in combat support operations on the beaches of and off the coast of Vietnam. The VA examiner should determine whether any of the stressors claimed by the Veteran are related to his fear of hostile military or terrorist activity. Thereafter, the VA examiner should confirm whether any of the claimed stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor(s). If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. D) If the examiner determines that there is inadequate evidence to support the occurrence of the in-service personal assault(s) or that the clinical evidence does not support a diagnosis of PTSD, to include that the claimed stressors do not support the diagnosis, the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (a 50 percent probability of greater) that any diagnosed psychiatric disorder had its onset in service or is otherwise etiologically related to the Veteran's service, including any incident of service to include exposure to chemicals. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. 5. Following the development set forth in paragraphs 1-3 of this REMAND, schedule the Veteran for an examination to evaluate the relationship between his cardiac disorder(s) and active duty service. The examiner should identify any current chronic cardiac disability. A specific finding should additionally address whether the Veteran has a diagnosis of ischemic heart disease. For any cardiac disorder diagnosed, the examiner should express an opinion as to whether such disorder was caused, or aggravated by, the service-connected Hodgkin's disease, or is otherwise at least as likely as not (a 50 percent probability of greater) related to any incident of active service, to include exposure to herbicides and/or chemical toxins. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should so state and provide supporting rationale. The claims file must be reviewed in conjunction with such the examination, and the examiner must indicate that such review occurred. 6. Following the development set forth in paragraphs 1-3 of this REMAND, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any peripheral neuropathy, lower extremities, that he may have. Any testing deemed necessary should be conducted. For any peripheral neuropathy diagnosed, the examiner should express an opinion as to whether such disorder was caused, or aggravated by, the service-connected Hodgkin's disease, or is otherwise at least as likely as not (a 50 percent probability of greater) related to any incident of active service, to include exposure to herbicides and/or chemical toxins. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should so state and provide supporting rationale. The claims file must be reviewed in conjunction with such the examination, and the examiner must indicate that such review occurred. 7. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs